Pember v. Shapiro
794 N.W.2d 435
| N.D. | 2011Background
- Pember filed for divorce from Shapiro; district court awarded Shapiro sole physical custody and granted relocation with the children, with Pember owing child support set at $2,080/month, later amended to $1,741; premarital agreement was held unenforceable; the assets were equitably divided with Shapiro receiving 62% and Pember 38%; the court eliminated spousal support and later remitted to recalculate child support on appeal.
- Pember and Shapiro contested custody, relocation, asset division, and child support on appeal; Shapiro cross-appealed on the premarital agreement and equitable division.
- The district court analyzed best interests using N.D.C.C. § 14-09-06.2(1) and, after initially ordering sole physical custody for Shapiro, later allowed relocation under N.D.C.C. § 14-09-07 and the Stout-Hawkinson relocation factors.
- The court relied on the Stout-Hawkinson four-factor test for relocation and used the pre-2009 terminology of custody and visitation; the relocation analysis followed after the custody determination.
- This Court affirmed custody and relocation, reversed the downward child support deviation error (year-round), remanded for a detailed net income calculation and proper downward deviation for extended visitation, and affirmed the premarital agreement unenforceability and the asset division.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sole custody and relocation were proper | Pember argues sole physical custody to Shapiro and relocation were clearly erroneous | Shapiro contends best interests supported sole custody and relocation | Yes; custody and relocation affirmed |
| Whether the premarital agreement should have been enforced | Pember asserts agreement should be enforced | Shapiro asserts lack of informed consent and voluntariness | Unenforceable |
| Whether the asset division was equitable | Pember challenges allocation; Shapiro claims debts not properly considered | District court acted within discretion in equitable distribution | Affirmed (premarital agreement unenforceability and asset division sustained) |
| Whether child support calculations complied with guidelines | Pember challenges extended visitation downward deviation and net income | Shapiro argues for proper deviation and income calculation | Remanded for detailed net income calculation and year-round downward deviation per guidelines |
Key Cases Cited
- Edwards v. Edwards, 2010 ND 2 (ND Supreme Court 2010) (standard for appellate review of custody findings; findings of fact reviewed for clear error)
- Slorby v. Slorby, ? (2009 ND 11) (clarifies standard of review; custody and related issues)
- Marsden v. Koop, 2010 ND 196 (ND Supreme Court 2010) (best interest factors for custody decisions)
- Frueh v. Frueh, 2009 ND 155 (ND Supreme Court 2009) (best interests framework under ND law)
- Stout v. Stout, 1997 ND 61 (ND Supreme Court 1997) (four-factor relocation test groundwork)
- Hawkinson v. Hawkinson, 1999 ND 58 (ND Supreme Court 1999) (fourth Stout-Hawkinson factor clarified)
- McNett v. McNett, 2006 ND 36 (ND Supreme Court 2006) (integration of Stout-Hawkinson with initial custody determinations)
- Lauer v. Lauer, 2000 ND 82 (ND Supreme Court 2000) (analysis of net income in child support calculations)
- Berge v. Berge, 2006 ND 46 (ND Supreme Court 2006) (necessity of explicit income and support calculations under guidelines)
- Graner v. Graner, 2007 ND 139 (ND Supreme Court 2007) (downward deviation for travel expenses allowed under guidelines)
- Dvorak v. Dvorak, 2006 ND 171 (ND Supreme Court 2006) (role of relocation factors in custody decisions)
- Sailer v. Sailer, 2009 ND 73 (ND Supreme Court 2009) (premarital agreement enforceability considerations)