¶1concurring and dissenting.
¶2[¶ 22] I agree with the majority that any claimed waiver of the right to receive child support is contrary to public policy, and I would reverse and remand for the district court to set child support in accordance with the Child Support Guidelines. The majority’s effort to open the door to reestablishing spousal support is contrary to our law. I therefore respectfully dissent from that portion of the majority opinion.
¶3[¶ 23] The parties entered into a stipulation that was incorporated into the divorce judgment. The majority, at ¶2, summarizes the stipulation as follows:
The stipulation provided Bruce Lee would receive primary physical custody of the child and pay a reduced amount of spousal support to Susan Lee in exchange for her not having a child support obligation.
¶4[¶ 24] Although the stipulation did provide that Bruce Lee would have primary physical custody of the child, the remainder of the majority’s characterization, I respectfully suggest, is not a fair summary of the stipulation. The stipulation and judgment actually provide:
[Susan Lee] shall not pay child support at this time under NDAC § 75-02-04.1-09(2)(j), because of a reduced ability to pay support due to her taking over the parties’ business pursuant to this divorce, refinancing said business and her income being speculative, and in consideration for a lesser spousal support award.
¶5The December 2001 stipulation clearly and explicitly is limited to her not paying child support at that time. In addition, the stipulation took into consideration several other factors present at that time, but which are omitted from the majority’s analysis.
¶6[¶ 25] Further, the stipulation and judgment clearly and explicitly contemplate that child support would subsequently be established:
Child support shall continue until the child reaches the age of nineteen (19) or graduates from high school, whichever shall occur first.
¶7[¶ 26] Susan Lee received the full spousal support provided under the stipulation and judgment. Spousal support came to an end. The stipulation and judgment do not provide for spousal support to be reestablished after it has ended, and the district court did not retain jurisdiction to reestablish it. There is no longer a basis for spousal support to be reestablished. Bellefeuille v. Bellefeuille, 2001 ND 192, ¶ 19, 636 N.W.2d 195 (should circumstances warrant, before rehabilitative spousal support ends, a party may apply for further spousal support or for reservation of jurisdiction over the issue).
¶8[¶ 27] The child, entitled to support from both its parents, has not been receiving support from Susan Lee since the divorce. Noncustodial mothers, as well as noncustodial fathers, have a duty to support their children. It is not appropriate for any court to seek to nullify that obligation.
¶9[¶ 28] Dale V. Sandstrom