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Serr v. Serr

December 16, 2008

AMANDA M. SERR, PLAINTIFF AND APPELLEE
v.
CODY G. SERR, DEFENDANT AND APPELLANT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.

The opinion of the court was delivered by: Sandstrom, Justice

REVERSED AND REMANDED.

[¶1] Cody Serr appeals from an amended judgment entered after remand in Serr v. Serr, 2008 ND 56, ¶¶ 17-23, 746 N.W.2d 416, in which we reversed the district court's child support award under the "equal physical custody" provision of N.D. Admin. Code § 75-02-04.1-08.2 and remanded for proper application of the guidelines because the judgment did not actually award each parent equal physical custody as defined by the guidelines. We hold the judgment on remand does not award each parent equal physical custody as defined by the child support guidelines, and we reverse the court's child support decision and remand for entry of judgment consistent with this opinion.

I.

[¶2] In May 2006, Amanda Serr sued Cody Serr for divorce, seeking custody of the parties' minor child and child support from him. Cody Serr answered and sought custody of the parties' child and child support from Amanda Serr. In August 2006, the district court entered an interim order, granting the parties "alternate custody [of the child] on a weekly basis," establishing Amanda Serr's interim child support obligation at $168 per month and Cody Serr's interim obligation at $394 per month, and ordering Cody Serr to pay Amanda Serr the difference of $226 per month.

[¶3] At a scheduled February 2007 trial, the parties agreed to a custody disposition, and Amanda Serr's counsel recited the stipulation to the court:

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 baby-sitting 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.

THE COURT: Mr. Baer, is the recitation reasonably accurate?

MR. BAER: Yes, it is, Your Honor. The only thing is-yeah, is a beginning time that we need-and depending on how long it takes us. It shouldn't take Maury and I too long. It's a matter of child support coming out of his check twice a month. They are taking one now. If it goes to the 1st of March and we end up in that situation we might need some kind of order that says after March 1 it no longer comes out of his check. And Maury and I can deal with that.

THE COURT: Make March 1 the effective date.

[¶4] At a May 2007 hearing, the parties disagreed about whether their stipulation provided for equal physical custody of the child for purposes of establishing child support under N.D. Admin. Code § 75-02- 04.1-08.2. After a short evidentiary hearing, the court issued amended findings of fact, conclusions of law, and an order for judgment, finding the parties intended to agree to "joint legal custody" and "joint physical custody" of the child and attempted "to achieve an equal division of the custody of the minor child" with Amanda Serr having custody from Thursday afternoon until Sunday evening and Cody Serr having custody for the remaining time. The court applied the provision of the child ...


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