Hamburger v. Hamburger , 2022 ND 154 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 4, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 154Tim Hamburger, Plaintiff and Appellant
v.
Kimberly Hamburger, Defendant and Appellee
No. 20220051
Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable James D. Gion, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Dennis W. Lindquist, Dickinson, N.D., for plaintiff and appellant; submitted
on brief.
Jami L. Haynes, Dickinson, N.D., for defendant and appellee; submitted on
brief.
Hamburger v. Hamburger
No. 20220051
Tufte, Justice.
[¶1] Tim Hamburger appeals from an order denying his motions for relief
from the divorce judgment and to amend his motion for relief. He argues the
district court erred by finding there was no agreement or acquiescence to a
change of residential responsibility, denying him an award of child support,
denying him an evidentiary hearing, and failing to award him attorney’s fees.
We affirm the order.
I
[¶2] Tim and Kimberly Hamburger are the parents of T.L.H., who was born
in 2003. The parties divorced in 2017, and the district court awarded Kimberly
Hamburger primary residential responsibility of T.L.H. and ordered Tim
Hamburger to pay child support. In September 2019, Roughrider North
Human Services Zone removed T.L.H. from Kimberly Hamburger’s care and
placed the child with Tim Hamburger. T.L.H. resided with Tim Hamburger
until June 2021, at which point T.L.H. attended basic combat training. Upon
completion of basic training, T.L.H. moved into his own apartment. T.L.H.
turned eighteen years old in November 2021.
[¶3] In July 2020, after T.L.H. had lived with Tim Hamburger for
approximately 10 months, Tim Hamburger moved to stay his child support
obligation. The district court granted the stay effective August 2020 and
ordered Kimberly Hamburger to repay any child support dating back to August
2020.
[¶4] In May 2021, Tim Hamburger moved for relief from the judgment to
award him primary residential responsibility of T.L.H. and establish a child
support obligation for Kimberly Hamburger. In November 2021, Tim
Hamburger moved to amend his motion to include back child support dating
back to when T.L.H. moved in with him. Tim Hamburger abandoned his claim
for primary residential responsibility, and the sole issue that remained was
child support. After a hearing, the district court denied the motion to amend,
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concluding denial was in the interest of justice and the amendment would be
futile. The court also denied the motion for relief from the judgment, finding
all the issues were either resolved or moot, and cancelled the evidentiary
hearing.
II
[¶5] Under N.D.R.Civ.P. 60(b), a court may relieve a party from a final
judgment. The court’s decision to deny relief will not be overturned on appeal
absent an abuse of discretion. Krizan v. Krizan, 1998 ND 186, ¶ 13, 585 N.W.2d
576. Under N.D.R.Civ.P. 15(a)(2), a party may amend its pleading with the
court’s leave. “A district court has wide discretion in deciding matters relating
to amending pleadings after the time for an amendment as a matter of course
has passed.” Darby v. Swenson Inc., 2009 ND 103, ¶ 11, 767 N.W.2d 147. We
will not reverse a court’s denial of a motion to amend unless it abused its
discretion. Id. The court abuses its discretion when it acts arbitrarily,
unconscionably, or unreasonably, or when its decision is not the product of a
rational mental process leading to a reasoned determination. Id. at ¶ 12.
III
A
[¶6] Tim Hamburger argues Kimberly Hamburger agreed or acquiesced to a
change in residential responsibility, retroactively terminating his child support
obligation and retroactively establishing a child support obligation for
Kimberly Hamburger from when T.L.H. began residing with him in September
2019.
[¶7] “A court has continuing jurisdiction to modify child support.” Marchus v.
Marchus, 2006 ND 81, ¶ 8, 712 N.W.2d 636. “A vested child support obligation,
however, cannot be retroactively modified.” Id.; see also N.D.C.C. § 14-08.1-
05(1)(c). Thus, when a court forgives past due child support obligations, it has
modified a child support order. Marchus, at ¶ 8. “Generally, a modification of
child support should be made effective from the date of the motion to modify,
absent good reason to set some other date.” Id.
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[¶8] In Brakke v. Brakke, 525 N.W.2d 687 (N.D. 1994), “this Court recognized
a narrow departure from the rule of no retroactive modification of child support
obligations.” Marchus, 2006 ND 81, ¶ 10. We have previously summarized the
Brakke decision:
Brakke involved an agreement by both parents to change custody
of their daughter for an extended period of time. Following this
change, the father requested retroactive relief from his child
support payments under a prior judgment. We concluded Rule
60(b)(vi), N.D.R.Civ.P., could be applied to relieve the father from
his child support obligations back to the date he became the child’s
custodial parent. However, in retroactively invalidating Mr.
Brakke’s support payments, we clearly stated this decision was not
a retraction from our position that “vested support rights cannot
be retroactively modified.” Thus, application of Brakke is limited
to cases where both parties agree to an actual change in custody
for an extended period of time.
Marchus, at ¶ 10; see also Brakke, at 690. In addition to the requirement that
the change of custody be for a “long duration, a prompt motion to modify should
be made.” Brakke, at 690. In Brakke, the Court excused the father’s delay in
making his motion because the delay was at the mother’s request. Id. “Further,
the guidelines expressly prohibit an abatement for temporary periods in which
the child resides with the non-custodial parent.” Marchus, at ¶ 7 (citing N.D.
Admin. Code § 75-02-04.1-02(2)).
[¶9] Tim Hamburger asserts that Kimberly Hamburger agreed or acquiesced
to a change in residential responsibility, satisfying the exception in Brakke. For
support, he cites Kimberly Hamburger’s brief in response to his motion for
change of residential responsibility, which states that she “did not object to a
change in residential responsibility.” Kimberly Hamburger argues that
although she initially did not object to a change in residential responsibility,
the circumstances changed, including T.L.H. enlisting in the National Guard,
attending basic training, and moving into his own apartment.
[¶10] No stipulation or agreement was filed with the district court. Further,
this case is different from Brakke in that Tim Hamburger did not provide any
excusable reason for the delay in moving to modify primary residential
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responsibility, which did not occur until May 2021 (20 months after T.L.H.
began residing with him). Thus, we conclude the court did not err by refusing
to retroactively terminate Tim Hamburger’s child support obligation or
recognize an obligation by Kimberly Hamburger.
B
[¶11] Alternatively, Tim Hamburger contends he is due back child support
because he became the parent with primary residential responsibility by
operation of law when T.L.H. began residing with him. He cites the definition
in N.D. Admin. Code § 75-02-04.1-01(9), which provides, “‘Parent with primary
residential responsibility’ means a parent who acts as the primary caregiver
on a regular basis for a proportion of time greater than the obligor, regardless
of descriptions such as ‘shared’ or ‘joint’ parental rights and responsibilities
given in relevant judgments, decrees, or orders.” Tim Hamburger does not
provide any further supporting authority for the proposition that this
definition overrides the court’s determination of primary residential
responsibility in the judgment. This definition explains that labels such as
“shared” or “joint” in describing a party’s parental rights and responsibilities
in a judgment are not determinative. However, the divorce judgment
unambiguously states that Kimberly Hamburger is awarded primary
residential responsibility of T.L.H. Tim Hamburger does not argue otherwise
and admits he abandoned his request to modify primary residential
responsibility in the district court. Thus, we conclude the definition of “[p]arent
with primary residential responsibility” in N.D. Admin. Code § 75-02-04.1-
01(9) does not override the court’s determination of primary residential
responsibility as stated in an unambiguous judgment.
C
[¶12] Tim Hamburger asserts he is due back child support under N.D.C.C.
§ 14-08.1-01, which provides:
A person legally responsible for the support of a child under the
age of eighteen years who is not subject to any subsisting court
order for the support of the child and who fails to provide support,
subsistence, education, or other necessary care for the child,
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regardless of whether the child is not or was not in destitute
circumstances, is liable for the reasonable value of physical and
custodial care or support which has been furnished to the child by
any person . . . .
(Emphasis added.) Tim Hamburger argues he is due back child support for his
support and care of T.L.H. while he resided with him. However, this statute,
by its plain language, does not apply in the case of a judgment providing the
obligations of the parties in supporting their minor child, such as here. See also
Hagel v. Hagel, 2006 ND 181, ¶ 6, 721 N.W.2d 1 (noting N.D.C.C. § 14-08.1-01
governs when there is no court-ordered child support).
D
[¶13] Tim Hamburger contends the district court erred by denying him child
support for the period from when he moved for primary residential
responsibility in May 2021 to when T.L.H. moved into his own apartment in
September 2021. However, at no point in time was Tim Hamburger awarded
primary residential responsibility, and he ultimately abandoned his request to
modify residential responsibility in the district court. “[T]he child support
guidelines contemplate child support payments by the parent without primary
residential responsibility to the parent with primary residential
responsibility.” Crandall v. Crandall, 2011 ND 136, ¶ 10, 799 N.W.2d 388. This
is not the case of a party seeking reimbursement of expenses against a parent
where no judgment delineates the parent’s obligation under N.D.C.C. § 14-
08.1-01. Thus, we conclude the court did not err in denying Tim Hamburger
child support from May to September 2021.
IV
[¶14] Tim Hamburger states the district court erred by denying him an
evidentiary hearing. He does not support his statement with any law or
argument. We conclude he waived this issue on appeal. See Riemers v. Grand
Forks Herald, 2004 ND 192, ¶ 11, 688 N.W.2d 167 (“[A] party waives an issue
by not providing supporting argument and, without supportive reasoning or
citations to relevant authorities, an argument is without merit.”).
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V
[¶15] Tim Hamburger argues the district court erred by failing to award him
attorney’s fees.
[¶16] “Generally, this Court applies the ‘American Rule,’ which requires
parties to bear their own attorney’s fees unless the fees are expressly
authorized by statute.” Lizakowski v. Lizakowski, 2017 ND 91, ¶ 25, 893
N.W.2d 508. Tim Hamburger cites to one statute authorizing attorney’s fees,
N.D.C.C. § 14-09-29(4), which provides,
In any proceeding dealing with parental rights and responsibilities
in which a parent is found to have perpetrated domestic violence,
and there exists one incident of domestic violence which resulted
in serious bodily injury . . . all court costs, attorney’s fees . . . must
be paid by the perpetrator of the domestic violence unless those
costs would place an undue financial hardship on that parent.
[¶17] Tim Hamburger does not direct us to any finding that Kimberly
Hamburger has perpetrated domestic violence. Although the record contains a
criminal complaint charging Kimberly Hamburger with two counts of domestic
violence, the record does not show there has been a finding of domestic violence
by the court or any factfinder. Accordingly, Tim Hamburger was not entitled to
attorney’s fees.
VI
[¶18] The parties’ remaining arguments are either unnecessary to our decision
or without merit. The order is affirmed.
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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