IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Natasha Bachmeier, nka||Supreme Court No.: 20120358|
|Plaintiff/Appellee,||District Court No. 51-10-C-286|
APPEAL FROM THE DISTRICT COURT OF WARD COUNTY
NORTHWEST JUDICIAL DISTRICT
DISTRICT COURT NO. 51-10-C-286
THE HONORABLE GARY LEE
|Tom P. Slorby (ID #03122)||Robert Rau (ID #03133)|
|Attorney for Plaintiff/Appellee||Attorney for Defendant/Appellant|
|PO Box 3118||PO Box 939|
|Minot, ND 58702||Minot, ND 58702|
|TABLE OF CONTENTS|
|Table of Authorities||ii|
|Statement of Case||¶5|
|Statement of Facts||¶6|
|Law and Argument|
|I.||Can a Parenting Plan be applied by the trial Court to the parties that was never adopted and made a part of the Judgment?||¶13|
|II.||Can a Parenting Plan benefits be accepted when it (a) Was adopted by the Court, (b) was not part of the Judgment and ( c) When Jason continually challenged the actions of Natasha?||¶17|
|III.||If the Parenting Plan is to be followed should (a) Only selective portions of it be followed and/or (b) Should vague provisions be construed against the drafting party?||¶21|
|IV.||Should Natasha be held in contempt of Court for frustrating and hindering Jason's parenting time and responsibilities?||¶28|
|TABLE OF AUTHORITIES|
|Botner v. Botner, 545 NW2d 188, 190 (ND 96)||¶26|
|City of Mandan v. Mi-Jon News, Inc. , 381 NW2d 540 (ND 86)||¶15|
|Glasser v. Glasser, 2006 ND 238, ¶10, 724 NW2d 144||¶26|
|Kienzle v. Yantzer, 2007 ND 167, ¶9, 740 NW2d 393||¶26|
|Red River Valley Brick Corp. v. City of Grand Forks, 27 ND 431, 146 NW 876 (ND 1914)||¶31|
|Silbernagel v. Silbernagel, 2007 ND 124, ¶10, 736 NW2d 441||¶26|
|Sullivan v. Quist, 506 NW2d 394, 399 (ND 93)||¶26|
|Woodward v. Woodward, 2009 ND 214, 776 NW2d 567,|
|ND Lexis 225 (Dec 18 2009)||¶31|
¶1 I.Can a Parenting Plan be applied by the trial Court to the parties that was never adopted and made a part of the Judgment?
¶2 II.Can a Parenting Plan benefits be accepted when it (a) Was adopted by the Court, (b) was not part of the Judgment and ( c) When Jason continually challenged the actions of Natasha?
¶3 III.If the Parenting Plan is to be followed should (a) Only selective portions of it be followed and/or (b) Should vague provisions be construed against the drafting party?
¶4 IV.Should Natasha be held in contempt of Court for frustrating and hindering Jason's parenting time and responsibilities?
STATEMENT OF THE CASE
¶5 Jason Bachmeier appeals from the Order of the District Court, the Honorable Gary Lee, dated July 19, 2012. The Order of the Court upheld the validity of a parenting plan that was not adopted by the trial Court at the time of the original Judgment. It appears that the District Court upheld the validity of the plan prospectively. The Plan has never changed although the parties had from time to time by mutual agreement deviated from it.
STATEMENT OF FACTS
¶6 Natasha generally agrees with the facts as set forth by Jason. The trial court made the following specific findings:
¶7 At the time of this divorce the parties lived on a farmstead approximately 5 miles north of Granville, North Dakota. This was the family home for the couple as well as the three children. Natasha Stevens had been attending Minot State University and had obtained a teaching degree during the marriage.
¶8 Most of the children's extended family live in the Granville area. Jason Bachmeier has three brothers, and parents who live in close proximity. Natasha Stevens' parents and a sister also live reasonably close by. The three children were involved in school, church, 4-H, and other activities in Granville. As so often happens in the case of divorce, the separation of the parties has upset not only the lives of the parties, but of the children as well.
¶9 Although the divorce was granted in March, 2010, Natasha Stevens remained in the Granville family home throughout the divorce, and through June, 2010. At that time, Natasha Stevens moved to Glenburn, North Dakota, approximately 30 miles away. Throughout the summer the parties essentially split residential responsibilities for the children, 50/50.
¶10 In August, 2010, Natasha Stevens advised Jason Bachmeier that she was taking the children out of the Granville school, and enrolling them in the Glenburn school. Jason Bachmeier was shocked and dismayed, as well as angered by what he viewed to be Natasha Stevens' unilateral and unjustified decision. He believed that the children should remain in Granville, the school they had always known, close to home, friends, and family. He would not accept Natasha Stevens' decision.
¶11 Jason Bachmeier attempted to obtain a temporary interim order blocking the school move. The trial judge at the time of the divorce, Judge Richard Hagar, refused to grant the order. Judge Hagar's decision was not appealed. (App. 106-107)
¶12 Natasha adds that the parties did not live together in the Granville family home from the time of the divorce in March to Natasha moving out in June 2010. They alternated the occupancy of the home with the children on a four day basis. (Trans 73, 74)
LAW AND ARGUMENT
¶13I.CAN A PARENTING PLAN BE APPLIED BY THE TRIAL COURT TO THE PARTIES THAT WAS NEVER ADOPTED AND MADE A PART OF THE JUDGMENT?
¶14 The parties executed a joint parenting plan on February 23, 2010. (App. 17-26) That document along with prepared Findings of Fact, Conclusions of Law, and Order for Judgment and Judgment was filed with the Court on March 5, 2010. (App. 2, 16) The parenting plan was not referenced nor incorporated by the Order for Judgment or Judgment. The parties believed however that the parenting plan was part of a Court Order, binding upon them and attempted to follow its terms. (App. 109, Trans. 84) The Court in the Order that is being appealed found that the parenting plan was binding upon the parties even thought it may not have been made part of the Court's Judgment and if it was not implemented as part of the original judgment it was adopted by the Court in this order. (App. 110, 111) In so doing, the Court noted that Jason wants the parenting plan to be applicable when it suits his purposes but not if it suits Natasha's. (App. 109)
¶15 It is unclear what Jason is seeking as to this issue. It seems that the only significance of the Court's failure to specifically adopt the parenting plan in the original judgment was that a party probably can not be held in contempt of Court for failing to comply with it. Additionally, Jason is estopped from objecting to the application of the parenting plan when he accepted it and waived any objection that he may have had as noted by the trial Court. (App. 110) City of Mandan v. Mi-Jon News, Inc. , 381 NW2d 540 (ND 86)
¶16 Further, he attempted to prevent Natasha from moving the children to Glenburn by way of motion to the trial Court. (App. 27-33) The motion was denied and Jason took no further action. (Trans. 49-50)
¶17 II.CAN A PARENTING PLAN BENEFITS BE ACCEPTED WHEN IT (a) WAS NOT ADOPTED BY THE COURT, (b) WAS NOT PART OF THE JUDGMENT AND ( c) WHEN JASON CONTINUALLY CHALLENGED THE ACTIONS OF NATASHA?
¶18 Jason's complaint is essentially that Natasha moved the children from Granville to Glenburn, a distance of approximately 27 or 28 miles. (Trans 45) It seems to be his contention that that somehow is contrary to the Judgment provision of shared custody.
¶19 The move of approximately 27 miles did nothing more than make the shared custody agreement more inconvenient.
¶20 Natasha was not prohibited from moving to Glenburn and enrolling the children in the Glenburn School by either the Judgment or the Parenting Plan. Again, it is not clear what Jason is seeking for a remedy as to this issue.
¶21 III.IF THE PARENTING PLAN IS TO BE FOLLOWED SHOULD (a) ONLY SELECTIVE PORTIONS OF IT BE FOLLOWED AND/OR (b) SHOULD VAGUE PROVISIONS BE CONSTRUED AGAINST THE DRAFTING PARTY?
¶22 The fact that Jason chose to not retain an attorney at the time of the divorce is irrelevant and is of no benefit to him.
¶23 There is nothing ambiguous as to any of the provisions of the Parenting Plan. The Judgment and the Parenting Plan both clearly anticipated that Natasha would be securing new housing. (App. 12, 22)
¶24 The Plan further anticipated that a party might move by providing that it may be modified if either moved more than 100 miles from their current residence. (App. 22) This provision recognizes that the Plan need not be modified if the move was for a shorter distance as is the case here. Natasha had every right to move from rural Granville to Glenburn pursuant to the Judgment and State law. That move did not interfere with Jason's right of shared custody. Lastly, the Plan states without ambiguity that the children's residence for school attendance would be Natasha's (App. 23) and that she was authorized to make educational decisions. (App. 24)
¶25 Therefore the contract principle regarding ambiguities does not apply in that there are no ambiguities.
¶26 Additionally, a stipulation or contract reduced to Judgment is no longer subject to contract interpretation but rather to the interpretation of the Judgment itself. When a stipulation is incorporated into a divorce judgment, the Court is concerned only with the interpretation and enforcement of the Judgment not with the underlying contract. Botner v. Botner, 545 NW2d 188 (ND 96) A settlement agreement that is wholly incorporated into a divorce judgment is merged into the Judgment and ceases to be independently viable or enforceable. Sullivan v. Quist, 506 NW2d 394, 399 (ND 93) Once a settlement agreement is merged with a Judgment, the agreement is interpreted and enforced as a final Judgment and not as a separate contract between the parties. Silbernagel v. Silbernagel, 2007 ND 124, ¶10, 736 NW2d 441. Interpretation of a Judgment is a question of law. Kienzle v. Yantzer, 2007 ND 167, ¶9, 740 NW2d 393 Construction or interpretation provisions of a Judgment is allowed only if the language of a judgment is ambiguous. Language is ambiguous if it can be reasonably construed as having at least two alternative meanings. Glasser v. Glasser, 2006 ND 238, ¶10, 724 NW2d 144 Neither construction nor interpretation is allowed if the language of a Judgment is plain and unambiguous. Id, Glasser, supra The parties stipulation in this matter was incorporated verbatim into the Judgment and therefore the Court is concerned only with the interpretation of the Judgment and not with the underlying contract. Botner v. Botner, 545 NW2d 188, 190 (ND 96)
¶27 The original divorce Court may not have specifically incorporated or adopted the Parenting Plan in the Judgment. However, the Court in issuing the Order that is before this Court did just that. It is now therefore part of the Judgment.
¶28 IV.SHOULD NATASHA BE HELD IN CONTEMPT OF COURT FOR FRUSTRATING AND HINDERING JASON'S PARENTING TIME AND RESPONSIBILITIES?
¶29 Natasha has not interfered with Jason's visitation or parenting time. The parties did alternate the parenting time on a four day/four day basis until Jason unilaterally decided not to do so. Jason chose to not exercise some of his parenting time due to driving and weather considerations.
¶30 The Judgment is silent as to transportation. The Parenting Plan, which Jason claims to be void when it suits his purposes, merely provides that the parties will make transportation and exchange arrangements as agreed upon. (App. 21) It appears that Jason interprets the provision "...will be agreed upon between the parties." to mean as dictated by him. Natasha provides transportation for the children when they are in her care and Jason provides transportation when they are in his care. (Trans. 126)
¶31 The trial Court did not find Natasha in contempt of Court. Such finding is within the discretion of the trial Court. Red River Valley Brick Corp. v. City of Grand Forks, 27 ND 431, 146 NW 876 (ND 1914); Woodward v. Woodward, 2009 ND 214, 776 NW2d 567, ND Lexis 225 (Dec 18 2009) There is ample evidence supporting the Court finding. The trial Court ruled that there in fact was no frustration of visitation and therefore correctly denied that request.
¶32 The trial Court's Order should be affirmed and the appeal dismissed with costs.
|Respectfully Submitted this 13th day of December, 2012.|
|Tom P. Slorby (ID#03122)|
|Attorney for the Respondent/Appellee|
|PO Box 3118|
|Minot, ND 58702|