Tschider v. Tschider , 926 N.W.2d 126 ( 2019 )

Filed 4/18/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 112Melanie J. Tschider,
a/k/a Su Lin Tschider, Plaintiff, Appellee,
and Cross-Appellant
v.
Stacy L. Tschider, Defendant, Appellant,
and Cross-Appellee
and
State of North Dakota, Statutory Real Party in Interest
No. 20180104
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Sonna M. Anderson, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by McEvers, Justice.
Douglas W. Murch (argued) and Robert J. Schultz (on brief), Fargo, ND, for
plaintiff, appellee, and cross-appellant.
Steven T. Ottmar (argued) and Joanne H. Ottmar (appeared), Jamestown, ND,
for defendant, appellant, and cross-appellee.
Tschider v. Tschider
No. 20180104
McEvers, Justice.
[¶1] Stacy Tschider appeals and Melanie Tschider, also known as Su Lin Tschider,
cross-appeals from a judgment that granted joint parenting responsibility of their
minor child and awarded child support, distributed the parties’ property and debts, and
awarded spousal support to Melanie Tschider. We conclude the district court erred
in holding a provision of the parties’ prenuptial agreement was unconscionable and
unenforceable and erred in awarding spousal support. We, however, conclude the
court’s property distribution was not clearly erroneous and the court did not abuse its
discretion in denying her request for attorney fees. We affirm in part, reverse in part,
and remand for further proceedings.
I
[¶2] Stacy Tschider and Melanie Tschider were married in December 2002 and
have one minor child born in 2004. Shortly before their marriage, both parties signed
a prenuptial agreement in December 2002. The parties began dating in 1995 and
began living together in 1996. At the time of their marriage, Melanie Tschider had
a net worth of less than $50,000 and annual income of $55,548. Stacy Tschider had
a net worth of $1,783,500 and an annual income of about $245,000. He had
ownership interests in six businesses with a book value of about $2.9 million and five
parcels of investment real estate, resulting in substantial annual income. In August
2015, Melanie Tschider commenced this divorce action.
[¶3] The district court bifurcated the issues in this case for trial. In November 2016
the court held a trial on residential responsibility for the child and on the validity of
the parties’ prenuptial agreement. After the first trial, the court awarded joint
residential responsibility and determined an amount for child support. The court also
held the prenuptial agreement was valid, except for a provision addressing spousal
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support. Specifically, the court held that the agreement’s paragraph 16 was
unconscionable and unenforceable. This paragraph states:
SUPPLEMENTATION OF INCOME IN EVENT OF CHILDREN
16. In the event children are born of the marriage, and in the
event Su-Lin and Stacy decide or determine it is in the best interests
that Su-Lin reduce or terminate her employment so as to allow Su-Lin
to spend more time with the children, and in the event the parties
divorce, then, and in that event, it is mutually agreed that Stacy shall
supplement Su-Lin’s income as provided herein. The supplementation
of income as described above shall be in a sum equal to the difference
between Su-Lin’s monthly income at the time of marriage or at the time
Su-Lin reduces or terminates her employment for purposes of spending
more time with the children, whichever is greater, and the monthly
income earned by Su-Lin following the divorce. It is acknowledged
and agreed that the supplementation amount may vary from
month-to-month depending upon Su-Lin’s actual income. It is mutually
agreed that Stacy’s obligation to supplement Su-Lin’s income shall
terminate two (2) years from the date Stacy makes his first
supplemental income payment to Su-Lin pursuant to this agreement; it
being the intention of the parties that Stacy’s obligation to supplement
Su-Lin’s income shall be limited to a total of twenty-four (24) monthly
payments.
It is acknowledged and agreed that the foregoing income
supplementation payments shall be deemed temporary alimony and not
child support payments.
[¶4] In June 2017, the district court held a second trial on the remaining issues. At
the second trial, the parties presented further evidence regarding child support,
division of assets and liabilities, enforcement of the prenuptial agreement, spousal
support, and attorney fees.
[¶5] In January 2018, the district court issued its further findings of fact and order
for judgment that divided the parties’ remaining joint property, ordered Stacy
Tschider to pay child support of $2,878 a month beginning June 2017, and ordered
him to pay spousal support of $6,500 per month for five years beginning on
September 1, 2015, through August 1, 2020, and then $4,000 per month for two
additional years until August 1, 2022. Final judgment was entered in February 2018.
II
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[¶6] Stacy Tschider argues the district court erred in deciding the parties’ prenuptial
agreement’s paragraph 16 is unconscionable and unenforceable. He further argues
that, if the provision is invalid, the court erred when it set the retroactive
commencement date, the amount, and the duration of the spousal support award. In
her cross-appeal, Melanie Tschider argues the parties’ entire premarital agreement is
invalid and the court’s spousal support award is clearly erroneous.
[¶7] The Uniform Premarital Agreement Act, N.D.C.C. ch. 14-03.1, allows parties
to contract to the disposition of their property on divorce. At the time of the parties’
2002 prenuptial agreement, N.D.C.C. § 14-03.1-03(1)(a) and (c) provided that parties
may agree to “[t]he rights and obligations of each of the parties in any of the property
of either or both of them whenever and wherever acquired or located” and to “[t]he
disposition of property upon separation, marital dissolution, death, or the occurrence
or nonoccurrence of any other event.” Under N.D.C.C. § 14-03.1-03(1)(d), the parties
may also agree to “[t]he modification or elimination of spousal support.” Section
14-03.1-07 (2002), N.D.C.C., states:
Notwithstanding the other provisions of this chapter, if a court finds
that the enforcement of a premarital agreement would be clearly
unconscionable, the court may refuse to enforce the agreement, enforce
the remainder of the agreement without the unconscionable provisions,
or limit the application of an unconscionable provision to avoid an
unconscionable result.
[¶8] We have explained that under the Uniform Premarital Agreement Act, a
premarital agreement may be deemed unenforceable if it is unconscionable “at the
time of execution, at the time of separation or marital dissolution, or at the time of
enforcement.” Sailer v. Sailer, 2009 ND 73, ¶ 22, 764 N.W.2d 445 (citing N.D.C.C.
§ 14-03.1-06(1)(b); N.D.C.C. § 14-03.1-06(2); N.D.C.C. § 14-03.1-07; Estate of Lutz,
2000 ND 226, ¶ 25, 620 N.W.2d 589). Whether a premarital agreement is
unconscionable presents a question of law; however, “it turns on factual findings
related to the relative property values, the parties’ financial circumstances, and their
ongoing need.” Sailer, at ¶ 21 (quoting Binek v. Binek, 2004 ND 5, ¶ 10, 673 N.W.2d
594); see also Estate of Lutz, 1997 ND 82, ¶ 44, 563 N.W.2d 90. “The substantive
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enforceability of a premarital agreement is a matter of law to be decided by the court.”
Pember v. Shapiro, 2011 ND 31, ¶ 39, 794 N.W.2d 435 (quoting Sailer, at ¶ 21). “A
premarital agreement is a contract, and its interpretation is a question of law, which
this Court reviews de novo on the entire record.” Brummund v. Brummund, 2010 ND
119, ¶ 6, 785 N.W.2d 182 (quoting Tweeten v. Tweeten, 2009 ND 164, ¶ 11, 772
N.W.2d 595).
[¶9] We have said that “when trial courts discuss whether a premarital agreement
is ‘clearly unconscionable’ under N.D.C.C. § 14-03.1-07, the analysis requires
complete factual findings about the relative property values and the other resources
and foreseeable needs of the spouse asserting the premarital agreement is
unconscionable.” Sailer, 2009 ND 73, ¶ 26, 764 N.W.2d 445; see also Estate of Lutz,
1997 ND 82, ¶ 45, 563 N.W.2d 90. Here, the district court made factual findings
explaining and supporting its legal conclusion that paragraph 16 is unconscionable.
The court, however, declined to declare the entire prenuptial agreement
unconscionable from its inception on the basis of its findings surrounding the
agreement’s execution shortly before their marriage. Rather, the court made findings
about the “minimal amount” of spousal support allowed to support its conclusion that
the premarital agreement’s paragraph 16 is unconscionable.
[¶10] The district court found Stacy Tschider had an average income of over
$800,000, while Melanie Tschider stayed home with the minor child and earned “a
fraction” of that amount. The court found his income since 2009 had varied from
$107,000 in 2012 to over $2,000,000 in 2014. The court found that although Melanie
Tschider has accounting skills, she had been out of the work force for several years
and would need to refresh her accounting skills and familiarity with new regulations
before she could become fully employable. The court also found her income from the
closely-held companies was not certain to continue after the divorce was final. The
court therefore found Melanie Tschider was in need of rehabilitative spousal support
and Stacy Tschider was capable of paying rehabilitative support. The court found the
amount of reasonable support for her to reenter the workplace was $6,500 per month
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for five years beginning on September 1, 2015, through August 1, 2020, and then
$4,000 per month for an additional two years until August 1, 2022.
[¶11] Stacy Tschider argues the district court’s finding of unconscionability is
inapposite with its other findings and urges this Court to hold paragraph 16 is
enforceable. He acknowledges no bright-line rule exists as to what is unconscionable
regarding a waiver of spousal support in a premarital agreement but asserts Melanie
Tschider has received great economic benefit from the marriage. He relies on the
court’s findings that she is leaving the marriage with nearly $3 million of an
approximately $14 million marital estate, or almost twenty-two percent of the entire
estate, with an ownership interest in eight of seventeen existing businesses. He
asserts she has the ability to reacquire her CPA certification and earn $90,000 per year
in addition to her part-time work, bringing her potential annual income to $150,000.
[¶12] Melanie Tschider responds that the district court did not err in deciding
paragraph 16 is unconscionable and unenforceable because the court made specific
findings about the parties’ net worth and income, addressed the parties’ estimated
monthly living expenses, and specifically found her income from minority positions
in the closely-held companies was not certain. In her cross-appeal, however, she
argues the entire prenuptial agreement, rather than only paragraph 16, is invalid. She
contends she did not voluntarily execute the agreement, she executed the agreement
under duress, and did not have the opportunity to consult independent legal counsel.
[¶13] She further contends the district court’s spousal support award is clearly
erroneous because a permanent spousal support award is appropriate based on the
substantial disparity between the spouses’ incomes. She asserts that they enjoyed a
high standard of living throughout their marriage and that she will never be able to
match Stacy’s income. She contends the court underestimated her “fair and
reasonable” monthly living expenses.
[¶14] While the district court properly held the parties’ premarital agreement was
mostly valid and enforceable, we conclude that the court’s findings also support the
conclusion that paragraph 16 is valid and enforceable as a matter of law. At the time
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of the initial trial, Melanie Tschider was 47 years old. She has a college degree in
accounting and obtained her CPA in 1992. She worked as a public accountant in New
York City for a year before returning to Bismarck as the chief accountant at BNC
Bank in 1995, where she was subsequently promoted to controller. She worked for
WBI Holdings as a certified public accountant at the time the premarital agreement
was signed in 2002 until the parties’ child was born in 2004. She thereafter worked
as CFO of Abaco Energy Services, LLC, one of the parties’ business entities,
beginning in 2007. She works for Abaco part-time earning $30,000 per year,
potentially receiving business profits of $75,000 to 80,000 per year according to Stacy
Tschider. At the time of trial, Stacy Tschider was 46 years old and is an entrepreneur
with interests in 17 different businesses. His main employment is with Rainbow
Energy with an annual income of approximately $800,000.
[¶15] Although Melanie Tschider disputes the district court’s valuation of the assets,
the court found Stacy Tschider’s net worth and income increased significantly to
$11,019,855 and Melanie Tschider’s net worth had increased to $2,991,500. The
court found that while Stacy Tschider continues to own the original businesses in his
own name, Melanie Tschider has an ownership interest in eight of the seventeen
existing businesses. The court found that while the businesses may require some cash
contributions, there is a reasonable expectation these businesses will also grow in
value increasing the parties’ net worth. The court specifically found the agreement
was not unconscionable as to the division of the premarital assets.
[¶16] The parties’ premarital agreement was apparently signed about eight days after
Stacy Tschider provided her the proposed agreement and six days before the parties’
marriage, but the district court held the agreement was not unconscionable from its
inception. The court found she had consulted with an attorney, proposed revisions
that were incorporated into the agreement, and had not argued she did not receive
competent legal advice. The court found there is evidence she acknowledged the
existence of the agreement over the years and did not dispute the validity of the
agreement until these proceedings.
6
[¶17] Despite not receiving specific exhibits referred to in the agreement, the district
court found she had significant general knowledge of his business enterprises. The
court found Melanie Tschider received sufficient financial disclosure at the time the
prenuptial agreement was signed. In awarding rehabilitative spousal support, the
district court found she had been out of the work force for several years and would
need to refresh her accounting skills and familiarity with new regulations before she
could become fully employable. The court also found the income from the closely-
held companies was not certain.
[¶18] On the basis of our review of the record, however, this evidence is not
sufficient to find paragraph 16 is clearly unconscionable and unenforceable. The
evidence shows Melanie Tschider is an educated professional, with some level of
sophistication at the time of the premarital agreement’s execution. As the district
court found, she had received sufficient financial disclosure and had the opportunity
to consult an attorney before signing the agreement. The court specifically rejected
her contention that she signed the agreement under duress. During the marriage she
has had some years of high annual income. Moreover, she is leaving the marriage
with significant assets, with some potentially producing income, and she can be
employable in her chosen field once she has refreshed her accounting knowledge.
Under these facts and circumstances, we cannot conclude that any portion of the
parties’ agreement is clearly unconscionable and unenforceable.
[¶19] On this record, we conclude the parties’ premarital agreement is valid and
enforceable and the district court erred in concluding paragraph 16 was
unconscionable and unenforceable. Because we conclude the district court erred in
holding paragraph 16 of the premarital agreement was unenforceable, we also
conclude the court erred in awarding spousal support, in contravention to the parties’
agreement. We therefore reverse the judgment to the extent it awards spousal support
and remand for the district court to enforce paragraph 16 and to make any related
necessary calculations in entering a judgment after remand.
7
III
[¶20] Both parties raise a number of issues challenging the district court’s
distribution of the marital estate, focusing on the proper characterization or treatment
of certain property or funds in interpreting and applying the prenuptial agreement’s
terms. In enforcing the parties’ premarital agreement, the district court found some
provisions had been disregarded or abandoned and also attempted to equitably
distribute certain property in resolving the parties’ disputes under the agreement.
[¶21] A district court’s decisions regarding the division of marital property are
treated as findings of fact and may be reversed on appeal if these findings are clearly
erroneous. Sailer, 2009 ND 73, ¶ 29, 764 N.W.2d 445 (citing Lynnes v. Lynnes, 2008
ND 71, ¶ 12, 747 N.W.2d 93). A finding of fact is clearly erroneous if it is induced
by an erroneous view of the law, if there is no evidence to support it, or if, after
reviewing the entirety of the evidence, this Court is left with a definite and firm
conviction a mistake has been made. Lynnes, at ¶ 12.
[¶22] Stacy Tschider argues the district court misapplied the prenuptial agreement
and erred in deciding that he had an obligation to reimburse Melanie Tschider for
business transactions occurring in the past; that the court erred in deciding certain
property constituted “contents of the household” under the agreement; that equity in
a jointly-owned vehicle must be equitably distributed; that she is required to
reimburse him for unpaid living expenses; and that she is required to reimburse him
for her share of taxes, preparation fees, and the 2014 tax refund.
[¶23] Melanie Tschider responds in opposition to his arguments; but in her
cross-appeal, she argues the district court also erred by not allocating cash to her for
a “five-percent” investment account contemplated in the agreement which was not
created, erred in not giving her one-half of the Burnt Creek property value, and erred
when the court held it had no authority to give her one-half of the value of the Powder
Ridge condominium.
[¶24] Here, the district court made sufficient findings for us to understand its
reasoning in addressing the various items of property, how it characterized and
8
distributed the property under the terms of the agreement, what provisions the parties
had abandoned or waived, and why the court required certain equitable payments
from Stacy Tschider to Melanie Tschider.
[¶25] For example, under paragraph 5 of the prenuptial agreement, the parties were
to establish a joint savings and investment account requiring the signature of both
parties to withdraw or transfer funds and each party was to deposit five percent of
their estimated monthly net income into the account for purposes of investments. The
district court found that, during the course of the marriage, the parties did not
establish the account and did not hold each other accountable to deposit five percent
of their monthly income into any similar account for investment purposes. Rather
than engage in “hypothetical accounting gymnastics,” the court found the parties had
“abandoned” this provision of the prenuptial agreement by their mutual actions. The
court noted that Stacy Tschider had made capital contributions on Melanie Tschider’s
behalf during the marriage, which substantially increased her net worth. The court
found this was a marital gift to her and made no further award under this provision.
[¶26] While paragraph 25 of the prenuptial agreement provides, among other things,
that “[n]o waiver of any provision of this Agreement shall be valid unless in writing
signed by both parties,” the district court nevertheless found the parties had
abandoned or, perhaps more accurately, waived certain provisions. “Waiver is a
voluntary and intentional relinquishment or abandonment of a known advantage,
benefit, claim, privilege, or right.” Sanders v. Gravel Prods., Inc., 2008 ND 161, ¶
10, 755 N.W.2d 826 (citation omitted and emphasis added). This Court has
specifically held that “[w]aiver may be established either by an express agreement or
by inference from acts or conduct,” even when a contract contains a clause requiring
any waiver or modification of the contract must be in writing. Savre v. Santoyo, 2015
ND 170, ¶ 21, 865 N.W.2d 419 (citation omitted); see also Estate of Kingston v.
Kingston Farms P’ship, 13 N.Y.S.3d 748, 750 (N.Y. App. Div. 2015) (“Waiver of a
contract right through abandonment may be established by ‘affirmative conduct’ of
a contract party and, [g]enerally, the existence of an intent to forgo such a right is a
9
question of fact.” (internal quotation marks and citation omitted)); Amerisure Mut.
Ins. Co. v. Global Reinsurance Corp. of Am., 927 N.E.2d 740, 747 (Ill. App. Ct. 2010)
(“Waiver of a contract term may occur when a party conducts itself in a manner which
is inconsistent with the subject clause, thereby indicating an abandonment of its
contractual right.” (citation omitted)). We have said that “the existence or absence
of waiver is generally a question of fact.” Savre, at ¶ 20 (quoting Sanders, 2008 ND
161, ¶ 10, 755 N.W.2d 826). A district court’s finding of fact will not be reversed on
appeal a unless it is clearly erroneous. Savre, at ¶ 11; Sailer, 2009 ND 73, ¶ 29, 764
N.W.2d 445. On this record, we conclude the district court’s findings that the parties
had abandoned or waived paragraph 5 of the prenuptial agreement by their failure to
create and contribute to a joint investment account for over thirteen years during the
marriage was not clearly erroneous.
[¶27] Stacy Tschider argues the district court erred in its interpretation of agreement
paragraphs four and six in its division of various water crafts, snowmobiles, ATVs,
and their jointly-titled 2015 Toyota Sequoia by finding these items were part of the
household. The parties’ prenuptial agreement in paragraph four states that “it is not
the intention of the parties to have joint property acquired by them during the
marriage.” The paragraph further states, “The sole exceptions shall be the marital
home, and all contents thereof, vehicles titled in both names, a joint checking account
to be utilized to pay household bills and a joint/investment account, which account
shall require the signature of both parties to withdraw or transfer funds.” Paragraph
6 provides:
In the event one of the parties acquires or purchases an asset which is
not reasonably described as “contents of the household”, it shall be
presumed that said property is owned solely by the acquiring
party/purchaser thereof unless said acquired/purchased asset is titled or
purchased in the names of both parties or unless otherwise expressly
provided in a writing executed by the purchasing/acquiring party.
[¶28] Stacy Tschider argues the court erred as a matter of law and these items cannot
be considered contents of the home. Even assuming an ambiguity, he contends the
agreement provides a presumption that the property belongs to the purchaser unless
10
titled in both names or a writing expresses otherwise. He asserts he purchased the
contested items in his name alone and is listed on the titles and registration cards for
the items. He argues the district court improperly placed the burden on him, and there
is no evidence showing Melanie Tschider was to be an owner or in any way
contributed to the purchase of these items to rebut the presumption.
[¶29] Here, the district court found the use of the water crafts, ATVs and
snowmobiles were an integral part of the family’s recreation activities, as the marital
home was located on the Missouri River. The court correctly noted the prenuptial
agreement does not define “contents of the household.” The court held the phrase was
inherently ambiguous, and, under N.D.C.C. § 9-07-19, an ambiguity in a written
contract was to be interpreted adversely to the party creating the ambiguity. The court
found it was therefore reasonable to consider the snowmobiles, boats, jet skis, and jet
ski docks as “part of the household” and subject to division as joint property. The
court awarded several recreational vehicles to Melanie Tschider, including two
snowmobiles if there was not a specific certificate of title for them. In awarding the
remaining boats and recreational vehicles to Stacy Tschider, the court found the
property had substantial value and the value awarded to him more than compensated
him for his share of the 2015 Toyota Sequoia, which the court awarded to her.
[¶30] As the district court noted, one legal dictionary defines “household” as an
adjective, “[b]elonging to the house and family; domestic,” and as a noun, “1. A
family living together. 2. A group of people who dwell under the same roof. . . . 3.
The contents of a house.” Black’s Law Dictionary 857 (10th ed. 2014); see also
Merriam-Webster’s Collegiate Dictionary 602 (11th ed. 2005) (also defining
“household” as “of or relating to a household”). We agree the phrase “contents of the
household” may be ambiguous under the facts and circumstances of this case, to the
extent the prenuptial agreement allows an asset to be “reasonably described” as
“contents of the household” without providing a further definition of the phrase.
Under the facts of this case, it is not “unreasonable” to consider untitled recreational
vehicles such as jet skis, and the dock at the marital home as contents of the
11
household. In reviewing the parties’ values for the recreational vehicles, the district
court awarded Melanie Tschider items valued at around $100,000, which includes the
entire value of the 2015 Toyota Sequoia, and the court awarded significantly more
value to Stacy Tschider in the remaining recreation vehicles.
[¶31] Further, as discussed, the district court found the parties had abandoned or at
least were not strictly following certain provisions of the prenuptial agreement,
precluding or rendering difficult some of the calculations requested by the parties. In
its findings the district court found, per the parties’ agreement, seven of the businesses
were not marital property and Stacy Tschider continued to own them free and clear
of any claim by Melanie Tschider. The court addressed in its findings an additional
eight businesses in which both parties had ownership. The district court then
specifically addressed disputes as to two remaining companies, ABACO Energy LLC,
and Key Leasing, LLC.
[¶32] In resolving the disputes regarding these two companies, the district court
thoroughly explained its decision requiring Stacy Tschider to pay $229,000 and
$15,000, respectively, for Melanie Tschider’s equitable interest in the businesses.
While Stacy Tschider contends he is being required to reimburse her for previous
transactions occurring before dissolution of the marriage, it is clear from the findings
the court was attempting to trace commingled or joint property to ascertain an
equitable share for the specific business transactions.
[¶33] On this record, we conclude the district court’s findings regarding the division
of property and specific monetary awards are not clearly erroneous and are supported
by evidence in the record.
IV
[¶34] Melanie Tschider argues the district court erred in denying her request for
attorney fees. “The district court has broad discretion to award attorney’s fees in
divorce proceedings under N.D.C.C. § 14-05-23.” Tuhy v. Tuhy, 2018 ND 53, ¶ 17,
907 N.W.2d 351 (quoting Brew v. Brew, 2017 ND 242, ¶ 32, 903 N.W.2d 72). The
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primary standard to award attorney fees under N.D.C.C. § 14-05-23 is consideration
of one spouse’s needs and the other spouse’s ability to pay. Tuhy, at ¶ 17. Here, the
district court specifically found the parties had sufficient financial means to bear their
own attorney fees. Evidence in the record supports the finding that both parties have
the ability to pay their own attorney fees. We conclude the court did not abuse its
discretion in refusing to award attorney fees.
V
[¶35] Stacy Tschider argues the district court erred in its determination of Melanie
Tschider’s child support obligation because it failed to include the spousal support
income awarded to her in computing her obligation. He also acknowledges, however,
that the court properly found both of their incomes if this Court reverses the district
court’s spousal support award. Melanie Tschider suggests on appeal that he must
pursue a subsequent modification of the judgment to change his child support
obligation. Because we are remanding for the district court to apply paragraph 16 of
the parties’ premarital agreement, the court may also address at that time the parties’
issues, if any, regarding the proper calculation of child support.
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VI
[¶36] We have considered the parties’ remaining arguments and conclude they are
either unnecessary to our decision or are without merit. The judgment is affirmed in
part and reversed in part, and the case is remanded for further proceedings consistent
with this opinion. Further, because a new judge has been assigned to this case, the
district court on remand must also certify compliance with N.D.R.Civ.P. 63.
[¶37] Lisa Fair McEvers
Jon J. Jensen
Jerod E. Tufte
Daniel D. Narum, D.J.
Gerald W. VandeWalle, C.J.
[¶38] The Honorable Daniel D. Narum, D.J., sitting in place of Crothers, J.,
disqualified.
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