Toni v. Toni

Decision Date05 December 2001
Docket NumberNo. 20010084.,20010084.
Citation636 N.W.2d 396,2001 ND 193
PartiesConrad R. TONI, Plaintiff and Appellee, v. Sheila A. TONI, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Maureen Holman, Serkland Law Firm, Fargo, ND, for plaintiff and appellee.

LaDonne R. Vik, Nilles, Hansen & Davies, Ltd., Fargo, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Sheila A. Toni appealed from an order denying her motion to modify a divorce decree under N.D.C.C. § 14-05-24. In the motion Sheila Toni asked the trial court to modify a spousal support award granted in a divorce judgment which incorporated her agreement with Conrad R. Toni to divest the court of jurisdiction to modify the amount and term of spousal support set forth in the agreement. We conclude the parties' agreement, which was found by the court in the divorce action to be "fair, just and equitable," is enforceable under North Dakota law and divested the court of jurisdiction to modify the spousal support award. We therefore affirm.


[¶ 2] Conrad and Sheila Toni were married from July 9, 1971, until May 10, 1999. The couple had three children during the marriage, and one of them was a minor at the time of the divorce. Both parties are employed in Fargo: Conrad as a urologist, and Sheila as a clerk at Barnes & Noble Bookstore.

[¶ 3] Before their divorce was granted, the parties entered into a "Custody and Property Settlement Agreement" which comprehensively addressed all divorce issues. The agreement stated that, although Conrad had been represented by counsel, Sheila "has not been represented by counsel and has been informed that Maureen Holman does not represent her interests in this matter but has not sought such independent counsel and enters into this custody and property settlement agreement of her own free will." The agreement also stated, "[b]oth parties agree that each has made a full disclosure to the other of all assets and liabilities and is satisfied that this custody and property settlement agreement is fair and equitable," and "[e]ach party has entered into this custody and property settlement agreement intending it to be a full and final settlement of all claims of every kind, nature, and description which either party may have or claim to have, now or in the future, against the other and, except as is expressly provided herein to the contrary, each is released from all further liability of any kind, nature or description whatsoever to the other."

[¶ 4] The agreement provided for "joint physical custody" of the couple's minor daughter, who was expected to graduate from high school in May 1999. The agreement divided the parties' real property, stocks and retirement accounts, but did not disclose the value of those assets. The agreement also contained the following provision on spousal support:

Commencing May 1, 1999, Conrad shall pay to Sheila the sum of $5,000 per month as and for spousal support. Said payments will continue on the first day of each month thereafter until the death of either party, Sheila's remarriage, or until the payment due on April 1, 2002 has been made. It is intended that the spousal support payable to Sheila shall be included in Sheila's gross income for income tax purposes and shall be deductible by Conrad. The court shall be divested of jurisdiction to modify in any manner whatsoever the amount and term of the spousal support awarded to Sheila immediately upon entry of the judgment and decree herein. The court shall retain jurisdiction to enforce Conrad's obligation to pay spousal support to Sheila.

[¶ 5] At the divorce hearing, Conrad appeared with his attorney, but Sheila, who had admitted service of the summons and complaint, did not personally appear. The trial court granted the divorce and, finding the parties' agreement to be "a fair, just and equitable settlement," incorporated its provisions into the divorce decree.

[¶ 6] In November 2000, Sheila moved under N.D.C.C. § 14-05-24 to modify the spousal support award. Sheila claimed in an affidavit that Conrad earned $14,000 per month in "take-home pay" when they married and she believed he continued to earn a "similar" amount per month, while she earns $1,000 per month working full-time as a clerk at Barnes & Noble Bookstore. Sheila further alleged, although income from assets she received in the divorce had paid her about $2,700 per month, the "return on those assets this year has been almost nothing." Sheila estimated her monthly expenses to be $5,340, and said her accountant informed her she could convert a retirement account into an annuity producing $2,000 per month in additional income, but she is "afraid to convert this to an annuity because I believe I need it for my retirement." Sheila claimed she has a "neurological condition" that causes her trouble sleeping, and she stayed home with the children during her marriage to Conrad rather than pursuing her own career. Sheila also stated:

I met Bob Boman after I separated from my husband. I had agreed to a reduced three-year term for spousal support because Dr. Boman was in his residency following medical school. Once he finished, we had agreed that he would pay the family expenses. Conrad and I had decided to divorce in August and I met Bob in October. Bob and I planned to marry after the divorce. Bob and I are no longer together and I do not receive any money from him.

[¶ 7] The parties agreed to submit to the trial court the sole issue whether the provision of the parties' agreement divesting the court of jurisdiction to modify spousal support was valid under North Dakota law, and to stay any proceedings on the merits of the motion to modify the spousal support award. The trial court dismissed Sheila's motion, ruling "the parties entered into a binding contract which was incorporated into the judgment and. . . the court now lacks jurisdiction to modify spousal support."


[¶ 8] We assume, for purposes of argument only, that Sheila's claims of lowered investment yields and a failed relationship are sufficient to constitute a material change of circumstances to support a motion to modify spousal support. See, e.g., Lohstreter v. Lohstreter, 2001 ND 45, ¶ 13, 623 N.W.2d 350

(noting a material change of circumstances is something which substantially affects a party's financial ability and needs and which is not originally contemplated by the parties); compare Johnson v. Johnson, 2001 ND 109, ¶ 8, 627 N.W.2d 779 (holding breakup of wife's engagement to fiancee after judgment is not newly discovered evidence for granting new trial). The legal question in this case is whether the parties' divorce stipulation regarding spousal support can divest the trial court of its statutory authority to modify the amount and duration of support. Questions of law are fully reviewable on appeal. See Lawrence v. Delkamp, 2000 ND 214, ¶ 7, 620 N.W.2d 151.

[¶ 9] At the pertinent time, N.D.C.C. § 14-05-24 allowed a trial court to compel either party to a divorce to make such suitable allowance for support as the court deemed just:

When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, and may compel either of the parties to provide for the maintenance of the children of the marriage, and to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively. The court from time to time may modify its orders in these respects.1

Under N.D.C.C. § 14-05-24, the trial court generally retains continuing jurisdiction to modify spousal support, child support, and child custody upon a showing of changed circumstances. See Kopp v. Kopp, 2001 ND 41, ¶ 5, 622 N.W.2d 726

. This Court has construed the statute, however, to not allow a trial court continuing jurisdiction to modify a final property distribution, Johnson, 2001 ND 109, ¶ 8,

627 N.W.2d 779, and we have held when a trial court makes no initial award of spousal support and fails to expressly reserve jurisdiction over the issue, the court subsequently lacks jurisdiction to award spousal support. Becker v. Becker, 262 N.W.2d 478, 484 (N.D.1978). Sheila argues N.D.C.C. § 14-05-24 gives a trial court the unconditional right to modify a spousal support award, regardless of any agreement by divorcing parties purporting to divest the court of that power.

[¶ 10] We encourage peaceful settlements of disputes in divorce matters. See Clooten v. Clooten, 520 N.W.2d 843, 846 (N.D.1994)

; Wolfe v. Wolfe, 391 N.W.2d 617, 620 (N.D.1986); Seablom v. Seablom, 348 N.W.2d 920, 924 (N.D.1984); Fleck v. Fleck, 337 N.W.2d 786, 791 (N.D. 1983); Peterson v. Peterson, 313 N.W.2d 743, 745 (N.D.1981); Galloway v. Galloway, 281 N.W.2d 804, 807 (N.D.1979). It is the promotion of the strong public policy favoring prompt and peaceful resolution of divorce disputes that generates a judicial bias in favor of the adoption of a stipulated agreement of the parties. See Laude v. Laude, 1999 ND 203, ¶ 7, 600 N.W.2d 848; Crawford v. Crawford, 524 N.W.2d 833, 836 (N.D.1994). We have also noted a person may waive "all rights and privileges to which a person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution, provided such rights and privileges rest in the individual who has waived them and are intended for his benefit." Gajewski v. Bratcher, 221 N.W.2d 614, 628 (N.D.1974).

[¶ 11] In line with these principles, this Court has held a trial court has continuing jurisdiction to modify child support notwithstanding parental divorce settlement agreements prohibiting or limiting the court's modification powers, because the right to child support belongs to the child rather than to the parent, rendering such agreements violative of public policy and invalid. See Smith v. Smith, 538 N.W.2d 222, 226 (N.D.1995)

; Sullivan v....

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