Kingstone v. Tedrow Kingstone

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

Brett Michael Kingstone,                                  Plaintiff and Appellant
      v.
Trisa Ranae Tedrow Kingstone,                            Defendant and Appellee



                                 No. 20240143

Appeal from the District Court of Eddy County, Southeast Judicial District, the
Honorable James D. Hovey, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Bahr, Justice.

Jacey L. Johnston (argued) and Blayze Fisher (on brief), under the Rule on
Limited Practice of Law by Law Students, Grand Forks, ND, for plaintiff and
appellant.

Robert G. Will, Minot, ND, for defendant and appellee.
                        Kingstone v. Tedrow Kingstone
                                No. 20240143

Bahr, Justice.

[¶1] Brett Kingstone appeals from a district court judgment awarding child
support to Trisa Tedrow Kingstone. On appeal, Brett Kingstone argues the court
erred in relying on expert testimony, in calculating his net income for his child
support obligation, in awarding an upward deviation of his child support
obligation, and in refusing to amend the judgment. We affirm in part, reverse in
part, and remand.

                                       I

[¶2] Brett Kingstone and Trisa Tedrow Kingstone were married in Florida in
July 2020. They entered a prenuptial agreement before their marriage. The
parties have one minor child together, L.R.K., born in 2021. L.R.K. is diagnosed
with hemophilia and Fragile X syndrome and has developmental and speech
delays.

[¶3] The parties separated in August 2022 when Trisa Tedrow Kingstone and
L.R.K. moved from the Colorado marital home to North Dakota. In March 2023,
Brett Kingstone commenced a divorce action in Florida and a child custody
action in North Dakota. The parties divorced in August 2023 under the binding
prenuptial agreement. The Florida divorce action did not address issues related
to the minor child.

[¶4] In December 2023, the North Dakota district court held a bench trial. The
court awarded Trisa Tedrow Kingstone primary residential responsibility of
L.R.K. and child support in the amount of $5,000 per month. Brett Kingstone’s
child support obligation includes $3,500, the maximum amount permitted under
the child support guidelines when a parent’s monthly income exceeds $25,000,
as well as an upward deviation in the amount of $1,500.

[¶5] After the district court entered the judgment, Brett Kingstone moved to
clarify or amend the judgment. He asserted the transportation and exchange
arrangements provision allowed Trisa Tedrow Kingstone to hinder his ability to


                                       1
exercise his parenting time with L.R.K. because the provision gave Trisa Tedrow
Kingstone unilateral control over when to use the “alternative” exchange
location. The court denied the motion to amend the judgment. The court granted
the motion to clarify the judgment, and clarified that the default exchange
location would be at L.R.K.’s home unless the parties mutually agreed to use the
alternative exchange location.

                                         II

[¶6] Brett Kingstone argues the district court abused its discretion in relying on
Trisa Tedrow Kingstone’s expert witness, Tahnee Magnus. He argues Magnus
could not accurately assess his income because she did not review the irrevocable
trust agreements.

[¶7] “Expert testimony is admissible whenever specialized knowledge will
assist the trier of fact.” Condon v. St. Alexius Med. Ctr., 

, 

; see also N.D.R.Ev. 702. “Whether a witness is qualified as an expert
and whether the testimony will assist the trier of fact are decisions largely within
the sound discretion of the trial court.” Condon, ¶ 28. (quoting Kluck v. Kluck, 

, 

). “A decision to admit expert testimony is reviewed
for abuse of discretion only.” 

[¶8] Magnus is a certified public accountant and certified fraud examiner with
nearly fifteen years of accounting experience. Magnus testified to Brett
Kingstone’s income and provided the district court with a summary of her
analysis. At trial, Magnus testified her summary was “based strictly off his
personal return and the holding company returns” from 2017 to 2022, as required
by child support guidelines. See N.D. Admin. Code § 75-02-04.1-02(7) (“Income
must be sufficiently documented through the use of tax returns, current wage
statements, and other information to fully apprise the court of all gross
income.”). She also testified she lacked access to the irrevocable trust
agreements, but that she believes her summary accurately reflects Brett
Kingstone’s income.

[¶9] Magnus’s lack of access to the irrevocable trust documents goes toward
the weight of her testimony, not its admissibility. In re J.M., 

, ¶ 14,

                                         2


 (doctor’s admitted failure to review patient’s entire file “goes to
the weight of her opinion and not to its admissibility”); Victory Park Apartments,
Inc. v. Axelson, 

 (N.D. 1985) (stating “the weakness or nonexistence of a basis for an expert’s opinion goes to his credibility, and not
necessarily to the admissibility of the opinion evidence”). We conclude the
district court did not abuse its discretion in relying on Trisa Tedrow Kingstone’s
expert witness in determining Brett Kingstone’s income for his child support
obligation.

                                       III

[¶10] The standard of review for child support decisions is well-established:

      Child support determinations involve questions of law which are
      subject to the de novo standard of review, findings of fact which are
      subject to the clearly erroneous standard of review, and may, in
      some limited areas, be matters of discretion subject to the abuse of
      discretion standard of review. A finding of fact is clearly erroneous
      if it is induced by an erroneous view of the law, if no evidence exists
      to support it, or if, on the entire record, we are left with a definite
      and firm conviction that a mistake has been made.

Williams v. Williams, 

, 

 (quoting Updike v. Updike,

, 

). “A court errs as a matter of law if it does not
comply with the requirements of the child support guidelines.” Knudson v.
Knudson, 

, 

. “The amount of child support
calculated under the guidelines is rebuttably presumed to be the correct amount
of child support in all child support determinations.” Williams, ¶ 14 (quoting
Thompson v. Johnson, 

, 

); see also N.D.C.C. § 14-
09-09.7(4).

[¶11] “A correct finding of an obligor’s net income is essential to determining
the proper amount of child support.” Knudson, 

 (quoting
Thompson, 

). “Income must be sufficiently documented through
the use of tax returns, current wage statements, and other information to fully
apprise the court of all gross income.” N.D. Admin. Code § 75-02-04.1-02(7).
After determining the obligor’s net income, the district court must apply the net


                                        3
income to the child support guidelines to calculate the proper amount of child
support. Knudson, ¶ 26. Section 75-02-04.1-02(11), N.D. Admin. Code, explains
certain sources of the obligor’s income are deducted from the obligor’s gross
annual income to calculate net income. Section 75-02-04.1-01(4), N.D. Admin.
Code, defines gross income to mean “income from any source, in any form,”
except for limited exclusions. “The definition of ‘gross income’ is ‘very broad
and is intended to include any form of payment to an obligor, regardless of
source, which is not specifically excluded under the guidelines.’” Knudson, ¶ 26
(quoting Wilson v. Wilson, 

, 

).

                                         A

[¶12] Brett Kingstone argues the district court improperly considered
irrevocable trust income reported on his personal tax returns when calculating
his gross income. He asserts he lacks access to, and does not receive income from,
the trusts.

[¶13] The child support guidelines define “gross income” to include “income
from any source” and specifically includes “trust income.” N.D. Admin. Code
§ 75-02-04.1-01(4)(b). The guidelines do not distinguish between irrevocable and
revocable trusts. Id. Whether the obligor can control the receipt of trust funds is
not relevant to whether the funds are income for child support purposes; the
issue is whether the obligor receives “any form of payment” from the trust. See
Knudson, 

; see also Mencer v. Ruch, 

, 

 (holding the fact a beneficiary does not have control over the receipt of
trust funds is not pertinent to whether it is considered income for child support).
Other states have held if a parent does not receive income from a trust, it may
not be used in child support calculations. See, e.g., Lipic v. Lipic, 

 (Mo. Ct. App. 2003) (holding trial court did not err in excluding trust income
from a parent’s gross income when the parent did not receive income from the
trust); Grohmann v. Grohmann, 

 (Wis. 1995) (holding a court
may consider trust income when a parent, as the grantor of a trust, receives
income from the trust and reports the income on their individual tax returns). A
court may need to consider the language of the trust to determine whether the
parent receives “any form of payment” from the trust. See Lewis v. Dep’t of Soc.


                                         4
Servs., 

 (Mo. Ct. App. 2001) (“Whether the income from a trust
should be included in determining the appropriate amount of child support
depends upon the type of trust involved and the intent of the settlor.”).

[¶14] Brett Kingstone argues he lacks access to, and does not receive income
from, the irrevocable trusts, and that the district court improperly included the
income from the trusts “simply because it was listed on [his] personal tax
return.” Brett Kingstone had the burden of providing adequate evidence to
support his argument the income from the irrevocable trusts should be excluded
or treated differently. Yet Brett Kingstone did not present any documents of the
irrevocable trusts to the court. At oral argument, Brett Kingstone stated he
provided Trisa Tedrow Kingstone with binders containing the “trust
agreements” before they got married, but acknowledged he only offered some of
the trust documents to the court as evidence. The irrevocable trusts’ documents
are not in the record. Brett Kingstone provided the court with the trust agreement
from his revocable trust but not for either of the irrevocable trusts.

[¶15] Brett Kingstone also did not provide the district court with evidence of his
income. The court explained that, before the interim order hearing, “Brett did
not file an itemized financial statement.” See N.D.R.Ct. 8.2(d)(3)(A) (“The
declarations and itemized financial statement of the moving party must be
served and filed no later than 21 days prior to the hearing.”). The court further
explained, “The only evidence of Brett’s income before the Court at the time of
issuance of the Interim Order was the evidence presented by Trisa.” After the
trial, the court again stated, “Brett did not provide child support calculations
with him as the obligor.”

[¶16] “Income must be sufficiently documented through the use of tax returns,
current wage statements, and other information to fully apprise the court of all
gross income.” N.D. Admin. Code § 75-02-04.1-02(7). In this case, Brett Kingstone
did not provide to the district court the necessary evidence to support his claim
regarding income from the irrevocable trusts. As a result, the court only had
before it the financial statements provided by Trisa Tedrow Kingstone and Brett
Kingstone’s tax returns listing the irrevocable trusts. See Devine v. Hennessee, 

, 

 (“The court could only rely on [the party’s]


                                         5
telephonic testimony and affidavit to determine her income” when the party
“did not provide documentation of her discharge, current income, medical
disability, or retirement pay.”); Shull v. Walcker, 

, 

 (“[A] decision to submit only certain evidence at a stage in the proceedings
generally cannot later constitute exceptional circumstances justifying relief from
a judgment.” (quoting Follman v. Upper Valley Special Educ. Unit, 

, 

)). Thus, the court’s reliance on Brett Kingstone’s tax returns
was within its discretion as factfinder.

[¶17] We conclude the district court did not err in including the irrevocable trust
income in its child support calculation where the obligor did not provide
evidence of the irrevocable trusts’ documents.

                                         B

[¶18] Brett Kingstone claims the district court improperly included income
derived through nonrecurring capital gains.

[¶19] The child support guidelines define “gross income” to include “income
from any source” but excludes “[n]onrecurring capital gains[.]” N.D. Admin.
Code § 75-02-04.1-01(4)(a)(6); see also Gerving v. Gerving, 

, 

 (stating “[t]he child support guidelines specifically exclude
nonrecurring capital gains from an obligor’s gross income”). The Department of
Human Services explained its decision to exclude nonrecurring capital gains,
stating, “[A]lthough a capital gain is treated as income for tax purposes, the cash
received is more in the nature of an asset than income and, accordingly, should
not be includible in gross income for guidelines purposes.” N.D. Dep’t Human
Servs., Summary of Comments Received in Regard to Proposed Amend. to N.D. Admin.
Code ch. 75-02-04.1 Child Support Guidelines, 1 (April 7, 2015).

[¶20] On appeal, Brett Kingstone argues “the District Court included capital
gains from [his] sporadic yearly sale of roughly one real estate transaction as he
was winding up his business getting ready for retirement[.]” He further asserts
his “tax returns indicate that such capital gains occurred at a rate of roughly one
sale a year and no new real estate investment over the past five years, with
significant gains realized in only two of those years.”

                                        6
[¶21] The district court determined Brett Kingstone’s capital gains were
recurring. The court found “Brett had significant capital gains income in 2017,
2018, 2019, 2020, and 2022. Thus, significant capital gains in 5 of the 6 years of
tax returns.” The court noted Brett Kingstone has consistently engaged in the
buying, selling, and development of real estate properties. According to
Magnus’s tax summary, capital gains for taxpayers “in the realm of real estate”
often appear in the form of long-term capital gains and Form 4797 gains from the
sale of business property. The tax summary suggests Brett Kingstone received
long-term capital gains in 2017, 2018, 2019, 2020, and 2022, as well as the capital
gains from the sale of business assets in 2017, 2018, 2019, and 2022. “Therefore,”
the court found, “Brett’s capital gains income is recurring.” The court concluded
that “[b]ecause Brett’s capital gains income is recurring then it must be
considered ‘gross income’ and included within the child support calculation.”

[¶22] We hold the district court’s finding Brett Kingstone’s capital gains are
recurring is not clearly erroneous because there is evidence to support it. We
conclude the court did not err in considering Brett Kingstone’s recurring capital
gains when calculating his child support obligation.

                                         IV

[¶23] Brett Kingstone argues the district court erred in ordering an upward
deviation of his child support obligation.

                                         A

[¶24] The amount of child support calculated using the North Dakota Child
Support Guidelines is presumed to be the correct amount. N.D. Admin. Code
§ 75-02-04.1-09(1). However, the amount can be rebutted “if a preponderance of
the evidence establishes that a deviation from the guidelines is in the best interest
of the supported [child] and” one criteria provided in N.D. Admin. Code § 75-
02-04.1-09(2) is met. See Verhey v. McKenzie, 

, 

(“The exclusive list of the criteria for rebutting the presumption is listed at N.D.
Admin. Code § 75-02-04.1-09(2).”). “The party requesting a deviation from the
presumptive amount of support under the guidelines bears the burden of proof.”
Schwalk v. Schwalk, 

, 

. The district court must

                                         7
make specific findings demonstrating why the guideline amount has been
rebutted. Keita v. Keita, 

, 

; Verhey, ¶ 14.

                                         B

[¶25] The district court deviated from the guidelines citing N.D. Admin. Code
§ 75-02-04.1-09(2)(b), (d), (f), and (h).

                                          1

[¶26] A district court may deviate from the guidelines under N.D. Admin. Code
§ 75-02-04.1-09(2)(b) if it finds that the deviation is in the best interest of the
supported child and:

      The increased ability of an obligor, with a monthly net income which
      exceeds twenty-five thousand dollars, to provide additional child
      support based on demonstrated needs of the child, including, if
      applicable, needs arising from activities in which a child
      participated while the child’s family was intact[.]

A court may deviate from the guidelines under section 75-02-04.1-09(2)(d) if it
finds that the deviation is in the best interest of the supported child and the child
has “increased needs” due to “disabling conditions or chronic illness.”

[¶27] Addressing N.D. Admin. Code § 75-02-04.1-09(2)(b), the district court
found Brett Kingstone “has a monthly net income which exceeds $25,000 and has
the ability to provide additional child support. His net monthly income was
calculated to near or above $120,000.00.” The court then found L.R.K. “has
increased demonstrated needs.” It explained:

      L.R.K. has been diagnosed with hemophilia and Fragile X and has
      developmental and speech delays. L.R.K.’s health conditions and
      delays have resulted in emergency room visits, many medical
      provider visits and appointments, extensive therapy, and pre-school
      education. This results in extra costs and expenses for the primary
      parent. Because of L.R.K.’s developmental delays and health
      conditions, there is a demonstrated need for additional child
      support.



                                         8
[¶28] Addressing N.D. Admin. Code § 75-02-04.1-09(2)(d), the district court
found L.R.K. has increased needs arising from her hemophilia, Fragile X
syndrome, developmental delays, and speech delays. The court further found
L.R.K.’s conditions have resulted in “significant additional costs” for Trisa
Tedrow Kingstone, including “medical bills, travel costs, medicine costs, missed
work, doctor/hospital care costs, therapy costs, and the need for care providers
that take into consideration and provide the special attention necessary for
L.R.K.” The court explained, “L.R.K.’s conditions will not be going away and
these are very likely to be lifelong conditions.” The court further noted Trisa
Tedrow Kingstone “claimed that such expenses result in a $2,000.00 per month
cost to her.”

[¶29] Under N.D. Admin. Code § 75-02-04.1-09(2)(b), when the obligor’s
monthly net income exceeds $25,000, the district court “must make a further
inquiry to determine an amount appropriate to the needs of the children and the
ability of the parent to pay.” Nuveen v. Nuveen, 

, ¶ 7, 

(quoting Montgomery v. Montgomery, 

 (N.D. 1992)). “[T]he
‘needs’ addressed by child support are the children’s ‘appropriate needs.’” 

(quoting Montgomery, at 236).

[¶30] Section 75-02-04.1-09(2)(d), N.D. Admin. Code, “allows a deviation from
the presumptively correct child support amount for the ‘increased needs’ of a
child with a disabling condition or chronic illness.” Jarvis v. Jarvis, 

, 

. “Increased needs” can include extraordinary or unexpected
health care needs. Id. ¶ 22. It can also include extraordinary educational costs.
Entzie v. Entzie, 

, 

 (affirming district court’s
finding child’s supplemental education warranted an upward deviation from the
guidelines).

[¶31] Here, the district court found L.R.K. has increased needs due to her health
conditions (hemophilia and Fragile X syndrome) and her developmental and
speech delays. It concluded L.R.K.’s health conditions and delays result “in extra
costs and expenses for the primary parent,” creating “a demonstrated need for
additional child support.”



                                         9
[¶32] The district court’s finding L.R.K. has increased needs due to her health
conditions and delays is supported by the record. However, the court failed to
explain or make explicit findings demonstrating why the upward deviation from
the child support obligation is in the best interest of L.R.K. and why it ordered
an upward deviation of $1,500 a month.

[¶33] The district court’s findings identify past medical expenses and preschool
education. Brett Kingstone argues L.R.K.’s medical expenses will be reduced or
eliminated now that L.R.K. has been diagnosed and is on medication. He points
out there is no expert testimony regarding L.R.K.’s future medical needs and
related costs.

[¶34] The district court did not make findings about L.R.K.’s future medical
needs and costs. Although “a line-by-line accounting of the needs of the [child]
is unnecessary,” the court must make sufficient “need-based fact finding” for
this Court to review whether the amount of additional child support is based on
the child’s demonstrated needs. Shae v. Shae, 

, 

.
The court also made no findings about additional educational costs due to
L.R.K.’s needs. The court notes Trisa Tedrow Kingstone “claimed that such
expenses result in a $2,000.00 per month cost to her.” But the court’s order lacks
explanation or quantification of how it arrived at the upward deviation amount.
The absence of detailed findings in the court’s calculation leaves this Court
unable to properly assess the reasonableness of the deviation amount. Section
75-02-04.1-09(2), N.D. Admin. Code, “cannot be applied unless those findings are
made.” Martire v. Martire, 

, 

 (concluding the
district court erred when it made an upward deviation of child support without
making findings about the appropriate needs of the child).

[¶35] Moreover, except for preschool education, L.R.K.’s identified needs relate
to medical care. But the judgment orders Brett Kingstone to provide medical
insurance for L.R.K. and to pay all of L.R.K.’s uncovered medical costs. The court
does not explain how L.R.K.’s medical condition “results in extra costs and
expenses for the primary parent” when Brett Kingstone must pay all of L.R.K.’s
medical costs.



                                       10
[¶36] We conclude the district court’s findings are insufficient to support its
upward deviation in the child support obligation under N.D. Admin. Code § 75-
02-04.1-09(2)(b) and (d). “A district court errs as a matter of law when it fails to
make required findings or when the required findings are not intelligible.” L.C.V.
v. D.E.G., 

, 

. “Where the court does not clearly
set forth how its child support decision is in compliance with the child support
guidelines, or why it has decided to deviate therefrom, it is appropriate to
remand for additional findings and a redetermination of the issue.” 

 Therefore,
we reverse the court’s judgment awarding an upward deviation of Brett
Kingstone’s child support obligation under section 75-02-04.1-09(2)(b) and (d)
and remand for additional findings of fact and a redetermination of the issue.

                                         2

[¶37] A district court may deviate from the guidelines under N.D. Admin. Code
§ 75-02-04.1-09(2)(f) if it finds by a preponderance of the evidence that the
deviation is in the best interest of the supported child and “[t]he increased needs
of children related to the cost of child care, purchased by the obligee, for
reasonable purposes related to employment, job search, education, or training[.]”
“An obligee’s child care expenses due to full-time employment are not factors
considered by the guidelines, and may be used to support an upward deviation
from the guidelines’ presumptively correct support amount, if it is in the
children’s best interests.” Reinecke v. Griffeth, 

 (N.D. 1995)
(cleaned up).

[¶38] Addressing N.D. Admin. Code § 75-02-04.1-09(2)(f), the district court
found Trisa Tedrow Kingstone “has not incurred costs of child care,” but “has
lost time being at her employment, resulting in lost income due to providing care
for L.R.K.”

[¶39] Section 75-02-04.1-09(2)(f), N.D. Admin. Code, authorizes an upward
deviation based on “increased needs of children related to the cost of child care,
purchased by the obligee[.]” The language requires a finding of actual
expenditures by the obligee for child care services, not a reduction in work hours.
See Lawrence v. Delkamp, 

, 

 (adding half the


                                        11
obligee’s monthly child care expenses to the support obligation); Reinecke, 

 (allowing upward deviation when obligee has a “substantial daycare expense”); Perala v. Carlson, 

 (N.D. 1994) (the cost of
childcare includes “the purchased cost of child care by paid sitters”).

[¶40] The district court’s finding Trisa Tedrow Kingstone “has not incurred costs
of child care” is contrary to the required finding for an upward deviation under
N.D. Admin. Code § 75-02-04.1-09(2)(f). Based on that finding, we conclude the
court erred as a matter of law in awarding an upward deviation of Brett
Kingstone’s child support obligation under N.D. Admin. Code § 75-02-04.1-
09(2)(f).

                                         3

[¶41] A court may order an upward deviation of a parent’s child support
obligation under N.D. Admin. Code § 75-02-04.1-09(2)(h) if the court finds a
deviation is in the best interest of the supported child and “[t]he increased ability
of an obligor, who is able to secure additional income from assets, to provide
child support[.]” “Before using this provision to deviate upwards from the
presumptively correct amount of child support, the court must state such income
is a deviation and make explicit findings on the best interests of the children and
the obligor’s ability to secure additional income from assets.” Thompson, 

 (quoting Entzie, 

).

[¶42] Addressing N.D. Admin. Code § 75-02-04.1-09(2)(h), the district court
found Brett Kingstone “has the increased ability to support an upward deviation
in the child support obligation.” “If necessary,” the court found, Brett Kingstone
“has the increased ability to secure additional income from his significant
assets.” The court noted several of Brett Kingstone’s non-liquid assets, including
his three homes, industrial properties, business entities, and luxury vehicles as
assets Brett Kingstone may use to secure additional income.

[¶43] The district court’s finding Brett Kingstone has an increased ability to
support is supported by the record. However, other than referring to “the child’s
increased needs,” the court made no finding why a deviation under N.D. Admin.


                                         12
Code § 75-02-04.1-09(2)(h) is in the best interest of L.R.K. or why a $1,500 upward
deviation in child support is an appropriate amount.

[¶44] We conclude the district court’s findings are insufficient to support its
upward deviation in the child support obligation under N.D. Admin. Code § 75-
02-04.1-09(2)(h). Therefore, we reverse the court’s judgment awarding an
upward deviation of Brett Kingstone’s child support obligation under section 75-
02-04.1-09(2)(h) and remand for additional findings of fact and a redetermination
on the issue.

                                        V

[¶45] Brett Kingstone argues the district court erred in ordering him to maintain
a $750,000 life insurance policy for L.R.K., asserting it exceeds the reasonable
security for child support obligations.

[¶46] The district court cited to N.D.C.C. § 14-08.1-03 to support its order for a
life insurance policy. Section 14-08.1-03 reads:

      In order to enforce an obligation for the support of a child under
      section 14-08.1-01, the court may make suitable provision for the
      future care or support of the child, require reasonable security for
      payments required under this chapter, and enforce the obligation by
      attachment, garnishment, or by other appropriate remedies,
      including proceedings under chapter 14-08 as nearly as may be.

[¶47] Section 14-08.1-03, N.D.C.C., allows a district court to order an obligor to
maintain a life insurance policy as reasonable security for child support
payments. Seay v. Seay, 

, 

. The statute does not
create additional child support, but a separate responsibility beyond the child
support obligation to provide reasonable security for future support obligations.
Id. ¶ 10. The district court concluded the “[s]ecurity of Brett [Kingstone]’s
financial obligations for L.R.K. would be appropriate and financially feasible for
Brett.”

[¶48] Brett Kingstone claims the life insurance policy for L.R.K. “imposes an
unnecessary financial burden” on him. He further asserts the life insurance


                                        13
policy “exceeds the reasonable security for [his] child support obligations . . .
given the substantial financial provisions already in place.” Brett Kingstone
states he “has made significant financial safeguards for L.R.K.,” including
contributions to a college savings plan and UTMA account.

[¶49] The district court found it is “appropriate and financially feasible” for
Brett Kingstone to secure his child support obligations for L.R.K. by establishing
and maintaining a life insurance policy “for the benefit of L.R.K. in the sum of
no less than $750,000.00.” We note a college savings plan, UTMA account, and
life insurance policy each serve different financial purposes. The college savings
plan and UTMA account do not provide the same protections for L.R.K. as a life
insurance policy.

[¶50] Due to L.R.K.’s age, increased needs, and Brett Kingstone’s financial
status, we conclude the district court did not abuse its discretion in ordering
Brett Kingstone to maintain a life insurance policy for L.R.K. However, the
court’s order that the policy be “in the sum of no less than $750,000.00” was based
on the order Brett Kingstone pay child support in the mount of $5,000 per month.
That amount may change on remand. Thus, we direct the court to reconsider the
amount of the insurance policy on remand based on its redetermination of
whether an upward deviation of child support is appropriate.

                                        VI

[¶51] Brett Kingstone argues the district court erred in refusing to amend the
judgment concerning the exchange provisions for L.R.K.

[¶52] Brett Kingstone filed a motion to clarify or amend the judgment
requesting, among other things, that the district court “clarify/modify the
judgment at paragraph 17 to allow [him] to choose the exchange location” or to
require “Trisa Tedrow Kingstone [to] deliver L.R.K. to the connecting airport in
North Dakota for pick up by Brett” and to “pick up L.R.K. from Brett at the
connecting airport in North Dakota.” After a hearing, the court denied the
motion to amend the judgment and granted the motion to clarify the judgment.
The court clarified that “the default exchange location” is L.R.K.’s home and that



                                        14
the “alternate pick up/drop off at nearby airport” requires “a mutual agreement
between the parties.”

[¶53] Under Rule 59, N.D.R.Civ.P., a court may alter or amend a judgment upon
motion after notice of entry of a judgment. N.D.R.Civ.P. 59(j). A party moving to
amend a judgment under Rule 59 bears a heavy burden “to show sufficient
grounds for disturbing the final judgment and relief will only be granted in
exceptional circumstances.” Richardson v. Richardson, 

, 

 (quoting Schmidt v. Hageness, 

, 

). We
review a district court’s decision on a motion to amend its judgment under an
abuse of discretion standard. Flaten v. Couture, 

, 

. “A court abuses its discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, or when it misinterprets or misapplies the law, or when
its decision is not the product of a rational mental process leading to a reasoned
determination.” 

[¶54] Brett Kingstone’s brief in support of his motion did not cite to N.D.R.Civ.P.
59(j), nor did he argue grounds for disturbing the final judgment. The district
court denied the motion to amend, stating Brett Kingstone’s brief “fails to cite
any law supporting a modification of the judgment, and as such, that portion of
the motion is deemed abandoned.” The court also explained the burden that
would be placed on Trisa Tedrow Kingstone if Brett Kingstone was allowed “to
make the unilateral decision that the pick up and drop off will occur at an
airport[.]” We conclude the court did not misinterpret or misapply the law, or
otherwise abuse its discretion, in concluding Brett Kingstone did not meet his
heavy burden of showing grounds to disturb the judgment. We also conclude
the court did not err in granting the motion to clarify the judgment. See Matter of
Curtiss A. Hogen Tr. B, 

, 

 (“Clarification of a
judgment is appropriate when the judgment fails to specify some particulars,
and uncertainties in the decree arise from subsequent events.” (quoting Hoverson
v. Hoverson, 

, 

)); Orvedal v. Orvedal, 

, 

 (“When a judgment is vague, uncertain, or ambiguous, the
court may clarify the judgment.”).




                                        15
                                      VII

[¶55] We have considered the parties’ remaining arguments and conclude they
are either unnecessary to our decision or are without merit. We affirm, in part,
the district court’s judgment. We reverse the portions of the court’s judgment
relating to the upward deviation of the child support obligation, and remand for
additional findings of fact and a redetermination on whether an upward
deviation of the child support obligation is appropriate under N.D. Admin. Code
§ 75-02-04.1-09(2)(b), (d), or (h).

[¶56] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




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