Serr v. Serr

• Decision Date: 20 March 2008
• Docket Number: No. 20070231.,20070231.
• Citation: 746 N.W.2d 416,2008 ND 56
• Parties: Amanda M. SERR, Plaintiff and Appellee v. Cody G. SERR, Defendant and Appellant.
• Court: North Dakota Supreme Court

746 N.W.2d 416

2008 ND 56

Amanda M. SERR, Plaintiff and Appellee v. Cody G. SERR, Defendant and Appellant.

No. 20070231.

Supreme Court of North Dakota.

March 20, 2008.

Benjamin C. Pulkrabek, Mandan, N.D., for plaintiff and appellee.

Richard B. Baer, Richard B. Baer, P.C., Bismarck, N.D., for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Cody Serr appealed from a divorce judgment awarding "joint custody" of the parties' minor child as "co-custodial parents" and calculating the parties' child support obligations. We conclude the district court did not err in its award of child custody, but because the divorce judgment on its face does not award the parties equal physical custody, we conclude the court erred by applying N.D. Admin. Code § 75-02-04.1-08.2 under the child support guidelines. We, therefore, affirm the district court's award of child custody, but reverse the district court's award of child support and remand for further proceedings.

I

[¶ 2] Cody Serr and Amanda Serr were married in May 2004, and have one child together, born in November 2002. In May 2006, Amanda Serr commenced this divorce action, and Cody Serr counterclaimed raising issues of child custody and child support. The district court scheduled the case for a February 2007 trial. At the February hearing, however, the parties reached a stipulated resolution of child custody, leaving details of the parties' child support calculations to be addressed by a later written document. The parties were unable to reach an agreement on the remaining issues, and no written stipulation was prepared.

[¶ 3] On May 16, 2007, the district court issued a notice of hearing scheduling a trial for May 30, 2007, on the remaining issues. On May 17, 2007, the district court issued its findings of fact, conclusions of law, and order for judgment, finding irreconcilable differences and granting the parties a divorce. The court also found the parties had "entered into a [s]tipulation," and without further detail made the stipulation "part of [the] document by reference, to be set out in full in the final [j]udgment." A judgment was also entered on May 17, 2007, which purported to address issues of custody and child support still apparently disputed by the parties.

[¶ 4] The hearing on May 30, 2007, was to decide issues of child support and child dependency for income tax purposes. But, in the absence of the written document the parties were to have prepared setting forth their agreement on custody, the court, over protest from Cody Serr's counsel, decided to "hear evidence on the entire custody issue." Only Amanda Serr testified, and she was cross-examined by Cody Serr's counsel. After the hearing, the court entered its order for amended findings of fact, conclusions of law, and order for judgment. In its amended findings of fact, the court found that the parties' intent was to have joint legal custody and joint physical custody of their minor child and that the parties had attempted to achieve an "equal division" of custody. The court concluded it was in the child's best interests to spend "equal time" with her parents "consistent with their agreement" and, applying N.D. Admin. Code § 75-02-04.1-08.2, ordered Cody Serr to pay child support in the amount of $306 per month.

[¶ 5] Cody Serr moved the district court under N.D.R.Civ.P. 59 to alter or amend its order, asserting that the parties had not agreed to a "50/50 split of custody" and that the court erred in its calculation of child support. The court denied his motion. A final judgment was entered in August 2007.

II

[¶ 6] Cody Serr argues that the district court did not "fairly set out" the parties' child custody agreement reached during the February 2007 hearing.

[¶ 7] This Court exercises a limited review of child custody awards. Eifert v. Eifert, 2006 ND 240, ¶ 5, 724 N.W.2d 109. Generally, "[a] district court's decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous." Jelsing v. Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157. However, this Court has also explained that where the parties stipulate to a custody arrangement, it must be given a great deal of deference, and to provide certainty in the future, the parties must be bound by the stipulated arrangement. See Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762.

[¶ 8] When a stipulation is incorporated into a judgment, we are concerned only with interpretation and enforcement of the judgment, not with the underlying contract. Botner v. Botner, 545 N.W.2d 188, 190 (N.D.1996). The interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished. Greenwood v. Greenwood, 1999 ND 126, ¶ 8, 596 N.W.2d 317. Whether a judgment is ambiguous is also a question of law. Id.

[¶ 9] During the February 2007 hearing, the parties' stipulation to child custody was recited to the court by Amanda Serr's counsel:

THE COURT: The Court will come back to order. Let the record show that the parties are present, together with their respective counsel, that they've now had some hour or longer to consider a stipulated disposition of the pending issues of child custody, child visitation and child support. Mr. Thompson, have you achieved a disposition?

MR. THOMPSON: That is correct, Your Honor.

THE COURT: Would you recite the same.

MR. THOMPSON: Yes, I will. We are going to follow what the Court had suggested with the custody. Cody will have the Sunday through Thursday and Amanda would have the Thursday through Sunday; also, that when the other parent is available for babysitting they will be utilized to the maximum, no matter who it is. With regard to child support, since we do have a co-joint custody, we would again use the guidelines. We'll redo the calculations to determine what the child support would be. Holidays, we've decided to leave that open. In other words, leave that up to the parties to decide rather than alternating. And that would include the typical holidays, Christmas, birthdays, things of that nature, and hopefully they can kind of work things out, even split days like on the child's birthday....

....

THE COURT: I'm going to allow you to stipulate. I'm going to ask you to reduce this to a written document.

MR. THOMPSON: Mr. Baer and myself will work together on that and would submit it to the Court after both of us agree to the language and everything, Your Honor.

THE COURT: Amanda Serr, did you hear Mr. Thompson's recitation.

MS. SERR: Yes, I did.

THE COURT: Do you agree and understand the fundamental concept?

MS. SERR: Yes, I do.

THE COURT: And you can be supportive of the same?

MS. SERR: Yes.

....

THE COURT: Cody Serr, do you understand and support the agreement?

MR. SERR: Yes, I do.

THE COURT: Any questions I can try to answer?

MR. SERR: No, sir.

[¶ 10] After the hearing on May 30, 2007, in which the parties appeared to address issues of child support and Amanda Serr testified regarding the parties' custodial arrangement, the court issued its amended findings of fact, conclusions of law and order for judgment. In its amended findings, the district court found that Cody Serr and Amanda Serr had "expressly stipulated on February 15, 2007, that it was their intent to enter into an agreement wherein each of Plaintiff and Defendant have joint legal custody and joint physical custody of the minor child of the parties...." The court found "[t]hat the parties have attempted to achieve an equal division of the custody of the minor child, with the Plaintiff having custody of the minor child from Thursday afternoon until Sunday evening, and the Defendant having custody of the minor child the remaining period of time." The court further found that Amanda Serr had "reorganized her work schedule so as to establish a four-day work week and to be able to accommodate the minor child from Thursday afternoon until Sunday evening" and that Cody Serr "is employed five days a week, Monday through Friday from 8:30 a.m. to 4:30 p.m." The district court then concluded that "[t]he stipulation of February 15, 2007, established the intent of the parties to share the custody, care and control of the minor child ..., and that the same constitutes a binding contract upon Plaintiff and Defendant." The court concluded, "[i]t is in the best interests of the minor child ... to spend equal time with Plaintiff and Defendant consistent with their agreement of the same."

[¶ 11] Although the district court's amended findings of fact, conclusions of law and order for judgment awards "joint legal custody and joint physical custody" and purports to achieve an "equal" division of custody, the actual judgment entered in August 2007, states the following regarding child custody:

2. The parties will be co-custodial parents and have the joint custody of the parties' minor child....

....

5. Plaintiff and Defendant have joint custody of the minor child....

.... The parties will share custody and visitation as follows:

a. Defendant will have the child from Sunday afternoon at 5:00 p.m. through Thursday afternoon at 5:00 p.m. of each week. Plaintiff will have the child from Thursday afternoon at 5:00 p.m. through Sunday afternoon at 5:00 p.m. of each week, except the parties will alternate the weekends depending upon the Plaintiff's work schedule.

b. The other parent will be given the first chance to take care of the child if the custodial parent needs either daycare and/or a babysitter c. The parties will split the major holidays, Christmas vacation, child's birthday, Mother's Day, Father's Day, etc., as agreed upon between the parties.

d. Each party will have access to the child by telephonic and electronic means.

[¶ 12] While the district court's underlying amended findings of fact, conclusions of law, and order for judgment suggest an "equal" division of custody, a...