Simburger v. Simburger, 20050032.
| Court | United States State Supreme Court of North Dakota |
| Writing for the Court | MARING, Justice. |
| Citation | 701 N.W.2d 880,2005 ND 139 |
| Parties | Shelly D. SIMBURGER, Plaintiff and Appellee v. Donald SIMBURGER, Defendant and Appellant. |
| Docket Number | No. 20050032.,20050032. |
| Decision Date | 25 July 2005 |
701 N.W.2d 880
2005 ND 139
v.
Donald SIMBURGER, Defendant and Appellant
No. 20050032.
Supreme Court of North Dakota.
July 25, 2005.
Clark J. Bormann of Bormann & Myerchin, L.L.P., Bismarck, N.D., for plaintiff and appellee.
MARING, Justice.
Donald Simburger appeals from a trial court order denying his motion to amend the divorce judgment to modify visitation of the parties' youngest child and ordering him to pay attorney's fees. We affirm in part, reverse in part, and remand.
I
[¶ 2] In May 2000, Donald Simburger and Shelly Simburger were divorced based on a stipulation after a twenty-four-year marriage. Before the divorce, in March 2000, Shelly filed for and was granted a domestic violence protection order against Donald, which limited Donald's visitation rights with the parties' minor child. The protection order stated:
Donald Simburger is granted the following visitation rights to the minor children of the parties: Visitation at least three hours each week at the Family Safety Center at the expense of Donald Simburger. This visitation provision may be superceded by a later court order in this matter or in another action concerning custody and visitation.
[¶ 3] There were no specific findings of domestic violence perpetrated by Donald in the protection order. The custody provision in the divorce judgment referenced the March 2000 protection order, and granted Shelly "sole care, custody and control of the parties' minor children, subject to rights of reasonable, supervised visitation by Donald in accordance with the protection order." The protection order expired in March 2002.
[¶ 4] Beginning in November 2001, Shelly allowed Donald unsupervised visitation with their youngest child. In August 2004, Shelly discontinued the unsupervised visitation, alleging Donald's behavior was having a negative effect on the child. In October 2004, Donald moved to amend the custody provision in the divorce judgment. A hearing was held in December 2004. The trial court denied Donald's motion, holding Donald had not shown a "material change in circumstances" had occurred, and awarded Shelly $1,000 in attorney's fees.
[¶ 5] Donald Simburger appeals.
II
[¶ 6] Donald argues the divorce judgment is ambiguous, causing the trial court to erroneously deny his motion to amend the visitation stipulation. He contends the judgment is ambiguous because it provides for visitation in accordance
[¶ 7] "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. The question of whether a judgment is ambiguous is a question of law. Id. An ambiguity exists when language can be reasonably construed as having at least two alternative meanings. Id. "If the same trial judge clarifies an original judgment, we afford the judge's clarification considerable deference." Dakutak v. Dakutak, 1997 ND 76, ¶ 6, 562 N.W.2d 750. However, when one trial judge interprets the decree of another, the interpreting court is in no better position than we are to determine the original judge's intentions, and this Court reviews such interpretations de novo. Id.
[¶ 8] The March 21, 2000, protection order provides:
2. Shelly Simburger is given temporary custody of the children of the parties.
3. Donald Simburger is granted the following visitation rights to the minor children of the parties: Visitation at least three hours each week at the Family Safety Center at the expense of Donald Simburger. This visitation provision may be superceded by a later court order in this matter or in another action concerning custody and visitation.
[¶ 9] The May 22, 2000, divorce judgment ordered by Judge Vukelic, provides:
IT IS HEREBY ADJUDGED AND DECREED as follows:
. . . .
2. [Shelly] is awarded the physical care, custody and control of the parties minor children . . . with rights of reasonable, supervised visitation by [Donald].
. . . .
7. Shelly shall have sole care, custody and control of the parties' minor children, subject to the rights of reasonable, supervised visitation by Donald in accordance with the protection order entered March 22, 2000.
[¶ 10] Donald's motion to amend the judgment to modify and establish set visitation was heard by Judge Romanick, who is not the same judge who entered the original judgment. We, therefore, review de novo the interpretation of the judgment. We conclude the stipulated divorce judgment is not ambiguous. The judgment clearly states Shelly "is awarded the physical care, custody and control of the parties minor children" with Donald having "rights of reasonable, supervised visitation in accordance with the protection order," which likewise clearly states Donald will receive at least three hours of supervised visitation each week.
III
[¶ 11] Donald asserts the trial court erred when it denied his motion to modify the visitation provision after concluding he did not establish a material change in circumstances. Donald contends the expiration of the protection order and his exercising unsupervised visitation both before and after the protection order expired establish a material change
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