Appeal from the District Court of Morton County, South Central Judicial District, the Honorable David E. Reich, Judge.
The opinion of the court was delivered by: Maring, Justice.
This opinion is subject to petition for rehearing. [Go to Documents]
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AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Maring, Justice.
[¶1] Marty Haroldson appeals and Heidi Haroldson, now known as Heidi Klein, cross-appeals from an amended judgment modifying their stipulated divorce judgment. The district court denied the parties' cross-motions to modify primary residential responsibility of their children, but ruled the parties' stipulated judgment for joint equal residential responsibility violated public policy and was void, because that provision was entered to allow the parties to avoid child support obligations. The court vacated the provision for equal residential responsibility and decided it was in the children's best interests for Klein to have primary residential responsibility. We conclude the parties' cross-motions for modification of residential responsibility authorized the district court to decide primary residential responsibility, but the court's findings on the best interests of the children are inadequate to understand the rationale for the court's decision. We affirm in part, reverse in part, and remand for findings on the best interests of the children.
[¶2] In June 2008, Haroldson and Klein stipulated to a divorce judgment granting them joint residential responsibility for their three minor children, which required the children to spend an equal amount of time with each parent. The stipulated judgment said the parties may agree between themselves to vary the schedules to accomplish their overall goal of sharing child rearing responsibilities. The judgment also ordered Klein to pay Haroldson $204 per month in child support under the offset provisions for equal physical custody in N.D. Admin. Code § 75-02-04.1-08.2.
[¶3] In May 2010, less than two years after entry of the stipulated judgment, Klein moved to amend the judgment under N.D.C.C. § 14-09-06.6(3)(c), which permits motions to modify primary residential responsibility within two years of a prior order if the court finds primary residential responsibility for the child has changed to the other parent for longer than six months. Klein claimed the parenting plan for equal custody of the children was never followed, and she had always had the children a majority of the time. In July 2010, the district court decided Klein had established a prima facie case for modification of primary residential responsibility. In September 2010, more than two years after entry of the stipulated judgment, Haroldson moved to modify primary residential responsibility of the children under N.D.C.C. § 14-09-06.6(6), which permits motions to modify primary residential responsibility after the two year period if the court finds a material change in circumstances and modification is necessary to serve the best interests of the children.
[¶4] After an evidentiary hearing on the parties' cross-motions, the district court denied Klein's motion for primary residential responsibility of the children, concluding she failed to establish primary residential responsibility for the children had changed to her for longer than six months under N.D.C.C. § 14-09-06.6(3)(c). The court also decided Haroldson had shown a material change in circumstances under N.D.C.C. § 14-09-06.6(6), because all three children were now in school, while only one child was in school when the parties divorced, and Klein was now engaged and living with her fiance. However, the court found Haroldson had not shown that awarding him primary residential responsibility would be in the children's best interests.
[¶5] The district court nevertheless concluded the provision of the stipulated judgment granting the parents joint residential responsibility and requiring the children to spend equal time with each parent was contrary to public policy and was void, because the court decided the parents agreed to that provision to allow them to avoid child support obligations. After concluding the equal custody provision was void, the court vacated that provision and ruled it was in the children's best interests for Klein to have primary residential responsibility. ...