Tiokasin v. Haas, 10788

• Decision Date: 27 June 1985
• Docket Number: No. 10788,10788
• Parties: Shirley J. TIOKASIN, f/k/a Shirley J. Haas, Plaintiff and Appellee, v. Gary S. HAAS, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 559

370 N.W.2d 559

Shirley J. TIOKASIN, f/k/a Shirley J. Haas, Plaintiff and Appellee, v. Gary S. HAAS, Defendant and Appellant.

Civ. No. 10788.

Supreme Court of North Dakota.

June 27, 1985.

No appearance for plaintiff and appellee.

Howe & Seaworth, Grand Forks, for defendant and appellant; argued by Henry H. Howe.

LEVINE, Justice.

Gary S. Haas appeals from a district court judgment which modified the child support provisions contained in a judgment and decree which granted Shirley J. Tiokasin a divorce from him. We affirm.

Gary and Shirley were divorced on February 2, 1983. Shirley was awarded custody of the couple's two minor children, Tami Marie and Amanda Jean Haas, and Gary was ordered to pay child support in the amount of $150 per month for each child. Shirley subsequently remarried.

On January 16, 1984, Gary and Shirley entered into a "Stipulation to Modify Judgment" ¹ which eliminated Gary's child support contribution. A hearing on Gary's motion to modify the divorce decree was held on June 6, 1984, during which Gary testified and the stipulation was introduced in evidence. Shirley was not represented by counsel and did not appear at the hearing. The district court refused to adopt the stipulation, but reduced Gary's child support payments to $62.50 per month for each child. Judgment was entered modifying the divorce decree accordingly, and Gary appealed.

The sole issue raised by Gary in this appeal is whether or not the district court erred in refusing to accept the parties' stipulation relieving Gary from his child support obligations contained in the original divorce decree.

Courts invested with the power to grant divorces and award child support have the power to change or modify the amount of child support to be paid whenever a proper showing has been made that the circumstances of the parties have materially changed. E.g., Skoglund v. Skoglund, 333 N.W.2d 795, 796 (N.D.1983); Nygord v. Dietz, 332 N.W.2d 708, 709-710 (N.D.1983). The primary factors to be considered by the court in fixing amounts of child support include each parent's earning ability, current financial circumstances and necessities, as well as the necessities of the children. Heller v. Heller, 367 N.W.2d 179, 182 (N.D.1985). Our standard of review of a trial court's disposition of a motion to modify the provisions in a divorce decree is governed by Rule 52(a), N.D.R.Civ.P. E.g., Skoglund, supra; Corbin v. Corbin, 288 N.W.2d 61, 64 (N.D.1980); Becker v. Becker, 262 N.W.2d 478, 481 (N.D.1978).

This court has often stated that a trial court is not bound to accept stipulations which purport to determine questions regarding the custody and care of the children of a marriage if it finds that it is not in the best interests of the children to do so. See Malaterre v. Malaterre, 293 N.W.2d 139, 142 (N.D.1980); Mathisen v. Mathisen, 276 N.W.2d 123, 129 (N.D.1979); Becker, supra, 262 N.W.2d at 480; Voskuil v. Voskuil, 256 N.W.2d 526, 529 (N.D.1977); Eisenbarth v. Eisenbarth, 91 N.W.2d 186, 189 (N.D.1958); Sinkler v. Sinkler, 49 N.D. 1144, 1149, 194 N.W. 817, 819 (1923).

However, Gary asserts, in effect, that the district court erred as a matter of law in rejecting the parties' stipulation because, under Peterson v. Peterson, 313 N.W.2d 743 (N.D.1981), there exist no "extraordinary circumstances" for doing so. In Peterson, we held that a court's authority under Sec. 14-05-24, N.D.C.C., to make a just and equitable distribution of property does not allow the court to rewrite a valid written separation agreement absent statutory grounds for rescission under Chapter 9-09, N.D.C.C. We noted, however, that the decision was not intended "to imply that the alimony and support provisions of a separation agreement may not be changed by a court when warranted by extraordinary circumstances." Peterson, supra, 313 N.W.2d at 745-746.

Peterson is clearly distinguishable. Peterson involved an agreement between a husband and wife concerning property division. It did not involve an agreement providing for payment of child support. The difference between a stipulated agreement concerning distribution of marital property and one concerning payment of child support is significant. While the former serves primarily to determine the interests of the contracting parties themselves, the latter directly affects the interests of the children of the marriage, who have the most at stake as a result of such an agreement but who have the least ability to protect their interests.

In effect, Peterson simply recognized the right of husband and wife to contract with each other. It did not decide, and is therefore not determinative of, the present issue of whether or not divorced parents have unrestricted authority to eradicate the noncustodial parent's obligation to pay child support. Resolution of this issue involves weighing the rights of divorced parents to regulate their children's lives with the duty and authority of the courts to monitor the best interests of those children when called upon to adjudicate issues of child support.

The statutes of our state set forth a strong public policy requiring the courts to assure the proper support and maintenance of minor children. See Mathisen v. Mathisen, 276 N.W.2d 123, 128 (N.D.1979). We fail to see how this policy would be compatible with one by which courts would essentially be bound by agreements between former spouses which could adversely affect the rights and interests of their children. Because a parental stipulation relating to child support is a legitimate incident of parental authority and control, it is entitled to serious consideration by the court. But such a stipulation need be accepted by the court only if, in the exercise of the court's judgment, it is deemed consonant with the child's best interests. To give a parental stipulation conclusive effect would abrogate the courts' traditional duty, arising from statute and case law, to independently monitor the best interests of the children of divorce. This we decline to do. Peterson does not alter prior pronouncements of this court that trial courts are not bound to accept stipulated agreements purporting to settle custody and child support questions if the court determines that the stipulation is not in the best interests of the children. ²

We also note that this court's decision in Aaker v. Aaker, 338 N.W.2d 645 (N.D.1983), does not require a contrary conclusion. In Aaker, the original divorce decree gave the mother custody of the child and ordered the father to pay $50 per month child support. The mother subsequently moved the court to increase the child support to $250 per month. At the hearing on the motion, during which both parties were represented by counsel, the parties orally stipulated to increase the amount of child support to $100 per month. The trial court approved the stipulation regarding the $100 per month payments from February through April 1983, but increased the child support payments to $150 per month commencing in May 1983. We remanded the case for the purpose of amending the judgment to conform to the stipulation, concluding that the court, after accepting the stipulation, erred by going beyond its terms without first giving notice to the parties. This court stated:

"We have no reservations on the proposition that the court has the authority to either accept or reject a stipulation. But adding to it without first informing the parties or obtaining the consent of the parties to the stipulation is another matter." Aaker, supra, 338 N.W.2d at 647.

Aaker is also distinguishable. In Aaker, the trial court not only failed to give notice of its addition to the stipulation, but also failed to obtain the consent of the parties to such addition. The failure to give notice foreclosed the parties from presenting any evidence in support of their stipulation. The resultant prejudice is obvious. In the present case, although the district court explicitly rejected the stipulation at the close of the hearing, Gary had already given evidence in support of the stipulation. While he failed to persuade the trial court, he nevertheless had the opportunity to present his case. Gary suffered no prejudice. Further, the trial court offered Gary the alternative of having the judgment modified by lowering the total child support payments to $125 per month. Gary consented to that modification.

We note also that Aaker involved a stipulation to increase the amount of child support rather than to delete it in its entirety. Furthermore, the mother and father in Aaker were both represented by counsel and present in court. Where, as in this case, a court is presented with a stipulation relieving the noncustodial parent of his child support obligation, and the custodial parent has neither been represented by counsel in the negotiations nor has even appeared at the hearing on the matter, the court must of necessity view the stipulation with caution. ³

Gary contends that approval of the stipulation would not be contrary to the best interests of his children. More specifically, he asserts that because Shirley and her present husband have a joint income of approximately $36,000, and because Shirley stipulated that the support she is able to give the children is presently adequate, under the provisions of Sec. 14-09-08, N.D.C.C., ⁴ he should not be required to pay the child support ordered. Section 14-09-08, N.D.C.C., provides:

"14-09-08. Mutual duty to support children. The parent entitled to the custody of a child must give the child support and education suitable to the child's circumstances. If the support and education which the custodial parent of a legitimate child is able to give are inadequate, the other parent must assist the custodial parent to the extent of his or her ability."

The district court's written findings of fact do not contain a finding that the support Shirley is able to give to the children is inadequate or that there is...