Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.
The opinion of the court was delivered by: Kapsner, Justice
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
[¶1] Priscilla Sonnenberg, n/k/a Priscilla Sauer, appeals from an amended order and judgment. We hold the district court erred as a matter of law by failing to comply with the child support guidelines and reverse and remand the court's calculation of the parties' child support obligations. We affirm the district court's denial of attorney fees.
[¶2] Sauer and Terry Sonnenberg married in 1993 and have two children together, J.S. and K.S. The parties divorced in 2002. In accordance with the parties' stipulation, the district court entered a divorce judgment awarding Sauer primary residential responsibility for both children, granting Sonnenberg reasonable parenting time, and ordering Sonnenberg to pay $751 per month in child support. On September 30, 2008, J.S. told Sauer she wanted to move in with Sonnenberg. Sauer contacted Sonnenberg to ask whether J.S. could move into his residence, Sonnenberg agreed, and J.S. moved in on October 1, 2008. After J.S. moved into his home, Sonnenberg continued to pay $751 per month in child support, as provided by the divorce judgment.
[¶3] On March 19, 2009, Sonnenberg filed a motion to modify the divorce judgment under N.D.R.Ct. 3.2. Sonnenberg requested the district court award him primary residential responsibility for J.S. and modify the parties' child support obligations. Sonnenberg did not file a motion for relief from the divorce judgment under N.D.R.Civ.P. 60(b)(vi). Sauer filed a counter-motion, agreeing to the district court awarding Sonnenberg primary residential responsibility for J.S. and modifying the parties' child support obligations, but requesting the court award her attorney fees. In August 2009, the parties entered a stipulation regarding primary residential responsibility and parenting time for both of their children.
[¶4] The district court held a hearing in September 2009 primarily regarding the proper amount of the parties' child support obligations, as well as the date from which the modified obligations should apply. Sauer, Sonnenberg, and J.S. all testified at the hearing. When J.S. moved into Sonnenberg's home, Sauer stated she "asked [Sonnenberg] for a cooling off period so that J.S. could decide for sure if this is exactly what she wanted." Sauer testified she wanted to wait until after the cooling off period before modifying child support, and she did not agree to modification beginning October 1, 2008. Sauer stated she presently resides with her new husband, Jason Sauer, and three children, including the parties' daughter, K.S. She stated Jason Sauer is the father of one of the children living in their home, and she receives child support from the father of the third child. Sauer testified she has worked in home daycare since 1997, never earning more than federal minimum wage.
[¶5] Sonnenberg testified that, when J.S. moved into his home on October 1, 2008, he and Sauer agreed to modify his child support obligation beginning that day. On cross-examination, Sonnenberg acknowledged Sauer requested a "cooling off period," but Sonnenberg insisted he and Sauer agreed to modification beginning October 1st:
Q: Isn't it true that in September of last year you wanted the child support obligation to change on October 1st, correct?
Q: And [Sauer] specifically stated you're going to wait six months to see if [J.S. moving into your home] worked out?
A: [Sauer] asked me for a cooling off period, which I denied. I said I did not want a cooling off period.
Q: Okay. So she didn't agree and you didn't agree?
A: To the cooling off period, correct.
Q: Okay. So she didn't agree to the six-month time period for or when the date child support would ...