In re the Marriage of: Pamela J. Stevermer, petitioner, Respondent (), Appellant (A07-669), vs. Kenneth A. Stevermer, Appellant (), Respondent(A07-669).

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In re the Marriage of: Pamela J. Stevermer, petitioner, Respondent (A07-594), Appellant (A07-669), vs. Kenneth A. Stevermer, Appellant (A07-594), Respondent(A07-669). A07-594, Court of Appeals Unpublished, September 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-594
A07-669

 

 

In re the Marriage of:

Pamela J. Stevermer,

petitioner,

Respondent (A07-594),

Appellant (A07-669),

 

vs.

 

Kenneth A. Stevermer,

Appellant (A07-594),

Respondent (A07-669).

 

 

Filed September 4, 2007

Affirmed in part, reversed in part, and remanded
Klaphake, Judge

 

Chisago County District Court

File No. 13-FA-06-353

 

 

Erin K. Turner, Johnson & Turner, P.A., 56 East Broadway Avenue, Suite 206, Forest Lake, MN  55025 (for Pamela Stevermer)

 

Timothy T. Ryan, 11185 Lake Boulevard, P.O. Box 333, Chisago City, MN  55013 (for Kenneth Stevermer)

 

            Considered and decided by Klaphake, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In these consolidated appeals, appellant Pamela J. Stevermer challenges the district court's order denying her motion to modify child custody and parenting time without an evidentiary hearing, denying her request that the child be seen by a therapist, and "encourag[ing]" the parties to "attempt to resolve" their dispute through mediation.  Respondent Kenneth A. Stevermer challenges the district court's order denying his motion to establish child support.

            Because the district court did not abuse its discretion in denying respondent's motion to establish child support based on the terms of the parties' agreement, we affirm that order.  Because the district court erred by failing to require the parties to submit their custody and parenting time dispute to mediation, as required by the terms of their agreement, we reverse the order denying appellant's motions.  We order the parties to submit the matter to mediation, and we make no ruling on the merits of appellant's motions.

D E C I S I O N

I.

            Respondent challenges the district court's decision to deny his motion to establish child support.  The district court denied respondent's motion based on the following provision of the parties' Marital Settlement Agreement, which was incorporated into their May 2004 Illinois divorce judgment:

            Child Support:  As Wife is presently a student and in need of any income from her part-time employment to provide for her education and support, payment of child support is reserved to allow Wife to obtain additional education and establish employment.  However, in the event Husband's annualized gross income falls below Fifty Thousand ($50,000.00) Dollars, he may seek support.  On September 1, 2008, Wife shall begin paying twenty (20) percent of her net income . . . as and for child support.  Not later than August 15, 2008, she shall submit to Husband evidence of her income from all sources so the amount of child support can be determined.

 

The parties also waived their rights to spousal maintenance and agreed on what they considered was an equitable distribution of their property.  The parties were both represented by counsel, and the Illinois district court approved the terms of the settlement agreement and found that those terms were "not unconscionable."

            Stipulated divorce judgments are generally deemed binding contracts.  Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997).  While a stipulated child support obligation is not binding on a court, "a stipulation is an important consideration in determining child support because it often results ‘from barter concerning child support, spousal maintenance, and property settlement.'"  McNattin v. McNattin, 450 N.W.2d 169, 171 (Minn. App. 1990).  Waivers of child support obligations are not favored and may be against public policy, but reservations of those types of obligations may be enforceable.  See Aumock v. Aumock, 410 N.W.2d 420, 421-22 (Minn. App. 1987).

            The district court concluded that under the terms of the parties' agreement, "child support [was] reserved until September 1, 2008," unless respondent's gross income fell below $50,000 and that his gross income has not fallen below that amount.  The court further concluded that the agreement

acknowledged that [appellant] was a student at the time, and allowed her the reservation of child support to obtain additional education and establish employment.  The timeframe for the reservation of child support [from May 2004 to September 2008] exceeded [appellant's] estimated length of time [one year] she would need to complete her education, and allowed for a number of years during which [appellant] would be working and earning money but was not obligated to pay child support.  [Appellant] recently started a job . . . and is entitled to the reservation of child support, as contemplated by the divorce decree, to establish herself in such position.

 

Respondent insists that the court failed to exercise its discretion because it should have determined that it was not bound by the agreement and it should have considered the parties' changed circumstances.  But respondent does not claim that the agreement is against public policy, and the facts presented here would not support such a claim.   Because the district court properly construed the parties' agreement and did not abuse its discretion, we affirm the order denying respondent's motion to establish child support.

II.

            The parties' divorce judgment also incorporated a Joint Parenting Agreement (JPA), which gave respondent "residential custody" of the child and gave appellant "reasonable and seasonal visitation."  The JPA also included the following provision:

            MEDIATION:  In the event the parents cannot agree upon a major joint custody decision or proposed change of this Agreement, they shall submit their dispute to mediation with Norman Dasenbrook.  If both parents have relocated outside the State of Illinois, they shall participate in mediation with a mental health professional who has been trained as a mediator, preferably one recognized by a Court-annexed mediation program if one is in place in the jurisdiction where [the child] resides.  Each parent shall pay one half (1/2) of the fee.  In the event they are unable to reach a mediated agreement, either may petition for appropriate relief.

 

The JPA further contemplated the parties' move from Illinois to Minnesota:

            RELOCATION AND REMOVAL:  The parents agree that, upon thirty (30) days notice, Father may permanently remove [the child] from Illinois to Minnesota without the necessity of any further Court proceedings.  If this occurs and Mother elects to remain in Illinois, the parents shall return to mediation with Norman Dasenbrook to determine appropriate visitation, including allocation of transportation responsibilities and cost between the parents.  If both parents relocate to Minnesota, the circuit or district Court in which [the child] resides shall assume jurisdiction of any future custody proceedings.

 

The Illinois district court approved the terms of the JPA and found it to be in the child's best interests.

            In the order appealed from here, the district court denied appellant's request for modification of custody or parenting time and "encouraged [the parties] to comply with [the JPA] . . . and attempt to resolve any parenting time disputes through mediation and/or through the use of a parenting time expeditor."  We believe the district court erred by deciding the parties' dispute and by not requiring the parties to first engage in mediation as required by the terms of their agreement.

            Appellant insists that the parties' dispute cannot be resolved through mediation because she makes a claim of domestic abuse.  See Minn. Stat. § 518.619, subd. 2 (2006) ("If the court determines that there is probable cause that one of the parties, or a child of a party, has been physically or sexually abused by the other party, the court shall not require or refer the parties to mediation or any other process that requires parties to meet and confer without counsel, if any, present.").  Although appellant alleges that an OFP was issued against respondent in December 2002, that OFP is not part of the record and was issued one and one-half years before the parties agreed to mediate any future disputes involving custody.

            Appellant does not claim that the child is endangered and does not allege any facts that would support a finding that domestic abuse has occurred since 2002.  She alleges in her supporting affidavit that respondent has continued to "control[], belittle[] and abuse[] me," but she does not claim that she has suffered any physical or bodily harm or that she fears for her or the child's safety.  See Minn. Stat. § 518B.01, subd. 2(a)(1), (2) (2006) (definition of domestic abuse).

            Because the district court erred by failing to require the parties to first engage in mediation, we do not reach the merits of appellant's motions.  We reverse the district court's order denying appellant's motions and direct the parties to enter into mediation.

            Affirmed in part, reversed in part, and remanded.