### Filed 1/15/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2019 ND 27

Janet L. Helbling, Plaintiff and Appellee

v. Wayne T. Helbling, Defendant and Appellant

No. 20180095

Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

AFFIRMED.
Opinion of the Court by McEvers, Justice

. Charles L. Chapman , Bismarck, ND, for plaintiff and appellee.
Theresa L. Kellington , Bismarck, ND, for defendant and appellant.Helbling v. Helbling
No. 20180095

McEvers, Justice. [¶1] Wayne Helbling appeals from an amended judgment providing p ayment terms and security for his remaining obligations to Janet Helbling un der their original divorce judgment. We conclude the district court did not err i n concluding the parties
had not modified the divorce se ttlement agreement and had not e ntered into an oral agreement to amend the judgment. We further conclude the court did not err by failing to find Janet Helbling was estopped from demanding paym ent of the remaining balance and did not err in entering the amended judgment contai ning an amortization schedule to pay his remaining obligations over a ten-year perio d with interest. We
affirm.

I [¶2] In 2000, Janet Helbling and Wayne Helbling were married. I n 2013, Janet Helbling sued for divorce asserting grounds of irreconcilable d ifferences. Before trial, the parties executed a divorce settlement agreement that distributed the parties’ marital property and debts. In September 2014, a divorce judgm ent was entered on the basis of the parties’ agreement. Relevant to this appeal are paragraphs 15, 21, and 33 of the judgment, which state: [¶15] REAL PROPERTY. The parties own two residences together; to wit: one located at . . . Morton County, North Dakota known as “the farmstead;” and the other located at . . . Mandan, ND. Subject to payment as set forth in Paragraph 21 below, the parties agree that Wayne shall have full ownership of and responsibility for the farmstead. As such, subject to payment as set forth in Paragraph 21 below Wayne shall have all right, title, interest, and equity, free and clear of any claim of the farmstead on the part of Janet. Uponpayment to her of the sums of money out lined [sic] in paragraph 21, Janet will issue a Quit Claim Deed, passing ownership of the above property to Wayne. The p arties agree that Janet s hall have full ownership of and responsibility for [street address of Mandan residence]. As su ch, Janet

1shall have all right, title, interest, and equity, free and cle ar of any claim on the part of Wayne. Wayne agrees to issue a Quit Claim Deed, passing ownership of the above property to Janet, within thirty(30) days of the date a Judgment is issued in this matter.

. . . . [¶21] PARTNERSHIP . Wayne shall be awarded all interest in Helbling Bros Ranch as partner and Janet hereby waives any clai ms she has to the Helbling Bros Ran ch. Janet shall receive $1,000,000 .00 of and for payment of all interest in the Helbling Bros Ranch and any and all other property both real and personal granted to Wayne. Th e parties agree that payment shall be made by Wayne to Janet as follows: a. $750,000 within 60 days of entry of judgment. She will then pay off the mortgage on [the Mandan residence]. b. $250,000 when Wayne turns age 65. Wayne may pay this early if he prefers. Janet will have a mortgage on [the Morton County property] which shall be subordinated to the loan Wayne will take out to pay her the initial payment. Additionally, each year until she is paid in full, she shall receive the rents from this parcel of land in an amount equal to the average rent for Morton County land as set out by the FSA North Dakota Land, Rent and Values publication. c. If Wayne does not get finan cing for the initial payment, the parties will either reach an agreement on how the $1,000,000 is to be paid and if they cannot do so the parties will ask the court to determine the terms of payment. Each would then be able to present evidence to the court on the issue of how it is to be paid.

. . . . [¶33] MODIFICATION OR WAIVER. No modification or waiver by the parties of any of the terms of this agreement shall be vali d unless in writing and executed with the same formality as this agreement. No waiver of any breach or default hereunder shall be deemed a wai ver of any subsequent breach or default. [¶3] To obtain part of his financing, Wayne Helbling took a mort gage on the farmstead, which had been jointly owned by the parties at the t ime of the entry of the judgment. Although paragraph 15 of the judgment gave Janet Hel bling the right to retain her interest in the farmstead until she was paid in full , Janet Helbling testified that the lender had required her to transfer her interest in th e farmstead to Wayne Helbling, so he could sign the mortgage individually. Despite the terms of the divorce

2judgment, Wayne Helbling paid nothing within 60 days following the entry of the judgment and had only paid Janet Helbling a total of $430,000 b y the time of the December 2017 hearing in this case. [¶4] In April 2017, Janet Helbling moved the district court to e nforce the judgment, requesting the court to establish payment terms for Wayne Helbl ing’s remaining obligations under the judgment. After a December 2017 hearing, the district court, among other things, ordered a ten-year amortization schedule fo r him to pay the remaining amounts due under the judgment and ordered him to pay interest. An amended judgment was entered in February 2018. Wayne Helbling filed an objection to the amended judgment, which the court denied.

II [¶5] When a stipulation is incorporated into a judgment, this Co urt is generally concerned only with its interpretation and enforcement. Kukla v. Kukla , 2013 ND 192, ¶ 9 , 838 N.W.2d 434. In Schulte v. Kramer , 2012 ND 163, ¶ 30 , 820 N.W.2d 318 (quoting Leverson v. Leverson , 2011 ND 158, ¶ 11 , 801 N.W.2d 740), we explained: When a settlement agreement is incorporated and merged into a judgment, we interpret and enforce only the final judgment, notthe underlying contract between the parties. Serr v. Serr , 2008 ND 56, ¶ 8 , 746 N.W.2d 416; Silbernagel v. Silbernagel , 2007 ND 124, ¶ 10 , 736 N.W.2d 441. Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished. Serr , at ¶ 8 ; Simburger v. Simburger , 2005 ND 139, ¶ 7 , 701 N.W.2d 880. Whether a judgment is ambiguous is also a ques tion of law. Serr , at ¶ 8 ; Simburger , at ¶ 7

. See also Kannianen v. White , 2010 ND 170, ¶ 6 , 788 N.W.2d 340. [¶6] “When incorporated into a judgment, ‘the stipulation and ju dgment are merged, and courts look to the incorporating judge’s intent, no t the intent of the parties to the stipulation.’” Kukla , 2013 ND 192, ¶ 9 , 838 N.W.2d 434 (quoting Webster v. Regan , 2000 ND 18 , ¶ 7 , 605 N.W.2d 808). “Extrinsic evidence of the parties’ intent is considered only if, after an examination of the judgment, the

3stipulated language is ambiguous and the incorporating court’s intent cannot be
determined.” Kukla , at ¶ 9

. [¶7] “If the same trial judge clarifies an original judgment, th e judge’s clarification
is entitled to considerable deference.” Kannianen , 2010 ND 170, ¶ 7 , 788 N.W.2d 340. “When interpreting the language of a prior judgment, [thi s Court] presume that the original trial judge considered existing statutes and relev ant caselaw, and intended the judgment to conform to the applicable legal standards.” Id. at ¶ 8 . “The interpretation of a judgment is a question of law, and an unamb iguous judgment may not be modified, enlarged, restricted, or diminished.” Kukla , 2013 ND 192, ¶ 9 , 838 N.W.2d 434 (quoting Serr , 2008 ND 56, ¶ 8 , 746 N.W.2d 416, and noting
N.D.R.Civ.P. 60 provides for relief from a judgment under certain circumstance s).

III [¶8] Wayne Helbling argues the district court erred in deciding the parties had not modified the divorce settlement agreement and erred in its ruli ng that the oral agreement was not enforceable in requiring any modification of the divorce settlement agreement be in writing and executed with the same formality as their divorce settlement agreement. Janet Helbling claims, however, the cour t’s findings that the parties had not reached any binding agreement to modify the jud gment was not clearly erroneous and that the court properly refused his claim for equ itable estoppel. [¶9] After the December 2017 evidentiary hearing, the district c ourt, the same judge who entered the original judgment, found the parties had reache d no enforceable agreement to modify their divorce judgment. The district court found the parties had not agreed that Janet Helbling waived her right to claim payments on either principal or rentals until Wayne Helbling retired. The court found Wayne Helbling’s claimed oral agreement was devoid of certainty, conferred benefits sole ly upon him, and violated the intent of the parties because there was no modific ation in writing and executed with the same formality as the parties’ original settl ement agreement.

4[¶10] The judgment on its face is unambiguous and paragraph 33 r equires any modification to be done in writing. Despite Wayne Helbling’s c ontention the parties orally agreed to modify the payment terms of the settlement agr eement, the operative document binding the parties is the divorce judgment. “When a settlement agreement is merged into a judgment, the agreement is interpreted and enf orced as a final judgment and not as a separate contract between the parties.” Silbernagel v. Silbernagel , 2011 ND 140, ¶ 11 , 800 N.W.2d 320. [¶11] In resisting Janet Helbling’s enforcement motion, Wayne He lbling claimed difficulty or an inability in complying with the original judgm ent’s payment terms. Wayne Helbling contended that he could not get a loan to pay of f Janet Helbling and that after the divorce she orally agreed to modify the payment agreement by deferring payments until he retires. The court found, however, that the Helbling Bros Ranch is a partnership consisting of Wayne Helbling and his two broth ers, in which Wayne owns a one-third interest. The court found that although he pr esented evidence from loan officers who testified he did not have enough collateral t o borrow additional money, the loan officers had considered only his personal asset s and income and did not take into account Wayne’s one-third partnership interest, w hich the court found Wayne had valued at $2,403,758 at the time of the divorce and at approximately the same amount in a financial statement Wayne signed on behalf of the partnership in
2016. [¶12] We conclude the terms of the judgment incorporating the parties’ settlement agreement is unambiguous. We further conclude the district court’s findings that the divorce judgment was not modified and no oral agreement had bee n reached modifying particular payment terms, are supported by the record and are not clearly
erroneous under N.D.R.Civ.P. 52(a)

. See Silbernagel , 2011 ND 140, ¶ 11 , 800
N.W.2d 320.

IV

5[¶13] Wayne Helbling contends Janet Helbling should be barred byestoppel under N.D.C.C. § 31-11-06 from making her demand for enforcement afte r he took out the loans and paid her. This section provides: When a party, by that party’s own declaration, act, or omission , intentionally and deliberately has led another to believe a particular thing true and to act upon such belief, that party shall not be permitted to falsify it in any litigation arising out of such declaration , act, or omission. This Court has further described the elements necessary to supp ort an estoppel claim: As to the person being estopped the elements are: 1) conduct wh ich amounts to a false representation or concealment of material fa cts, or, at least, which is calculated to convey the impression that the facts are otherwise than those which the party subsequently attempts to a ssert; 2) the intention, or at least the expectation, that such conduc t will be acted upon by, or will influence the other party or persons; an d 3) knowledge, actual or constructive, of the real facts. As to th e person claiming estoppel the elements are: 1) lack of knowledge and th e means of knowledge of the truth as to the facts in question; 2) reliance, in good faith, upon the conduct or statements of the party to be estopp ed; and 3) action or inaction based thereon, of such a character as to change the position or status of the party claiming the estoppel, to his i njury, detriment, or prejudice. Royal Jewelers, Inc. v. Light , 2015 ND 44, ¶ 14 , 859 N.W.2d 921 (quoting Blocker Drilling Canada, Ltd. v. Conrad , 354 N.W.2d 912, 920 (N.D. 1984)). We have repeatedly held that estoppel generally presents a question of fact. Royal Jewelers , at ¶ 15 (citing Erickson v. Brown , 2012 ND 43, ¶ 15 , 813 N.W.2d 531; Nelson v.
Johnson , 2010 ND 23, ¶ 30 , 778 N.W.2d 773; Conrad , at 920 ; Peterson Mech., Inc.
v. Nereson , 466 N.W.2d 568, 571 (N.D. 1991)). [¶14] We conclude the following district court finding of fact i n its order for amended judgment is dispositive of Wayne Helbling’s estoppel cl aim: 7. Wayne claimed that Janet orally agreed to modify the payment agreement by deferring all payments, until he retired. However, Wayne also testified that he had no plan to retire at age 65 or any other specific age. Janet agreed that the parties did talk about deferring further payments on principal, but she also testified that her willingness to hold off on enforcement of further payments cond itioned upon Wayne’s willingness to continue to work toward reconciliat ion.
6However, Janet testified that no actual agreement on deferment was ever made, and that there was no discussion of deferring rental payments. Janet testified that she believed that reconciliatio n was possible, in part because Wayne periodically came to her house for “supper and sex;” although Wayne denied that he was seeking reconciliation, he did admit to one sexual encounter with Janet after the divorce. Janet testified that, once Wayne’s actions revealed that the possibility of reconciliation ended, Janet decided to enforce the payments. This finding, coupled with the district court’s other findings that any purported oral agreement was devoid of certainty, conferred benefits solely up on him, and violated the parties’ intent, is sufficient to defeat Wayne Helbling’s e stoppel claim. [¶15] On the basis of our review of the record, we conclude that the district court’s findings sufficiently address Wayne Helbling’s claim of estoppe l and are not clearly erroneous and that the parties’ conduct subsequent to the entryof the divorce judgment did not bar Janet Helbling from moving to enforce the original judgment’s

terms.

V [¶16] Wayne Helbling argues that the district court erred in ord ering an amortization schedule be created by which the balance be paid by him over a ten-year period at the legal rate of interest; and erred in modifying the divorce sett lement agreement in adding interest on the unpaid balance. He argues there was no motion to modify the judgment and the only motion brought was to enforce the judgment. Janet Helbling claims, however, that the district court had discretion under the terms of the original judgment. [¶17] In Rath v. Rath , 2014 ND 171, ¶ 16 , 852 N.W.2d 377, this Court held the district court had gone beyond the scope of the motions and ame nded, rather than merely clarified, the divorce judgment because neither party ha d actually moved to amend the divorce judgment. We explained: “[D]ue process requires a party receive adequate notice and a f air opportunity to be heard.” Schmalle v. Schmalle , 1998 ND 201, ¶ 9 , 586 N.W.2d 677; see also Snyder v. Snyder , 2010 ND 161, ¶ 17 , 787
7N.W.2d 727. “‘[T]o comport with due process, a fair hearing re quires reasonable notice or opportunity to know of the claims of oppos ing parties, along withthe opportunity to rebut those claims.’” Harris v. Harris , 2010 ND 45, ¶ 10 , 779 N.W.2d 642 (quoting Meier v. Said , 2007 ND 18, ¶ 15 , 726 N.W.2d 852). Although due process requirements are “flexible and vary depending” on each case’s circumstances, the district court’s modification of the divorce judgment as a part of its contempt order failed to comport with the well

established [tenets] of due process. See Snyder , at ¶ 17

. We have said a district court may clarify a divorce judgment wh en the judgment is “vague, uncertain, or ambiguous” and clarification is often appropriate when the judgment “fails to specify some particular s[,] and uncertainties in the decree arise from subsequent events.” Orvedal v. Orvedal , 2003 ND 145, ¶ 4 , 669 N.W.2d 89; see also Greenwood v. Greenwood , 1999 ND 126, ¶ 8 , 596 N.W.2d 317 (“‘If the same trial judge clarifies an original judgment, we afford the judge’s clarification considerable deference.’” (quoting Dakutak v. Dakutak , 1997 ND 76, ¶ 6 , 562 N.W.2d 750)).
Rath , at ¶¶ 14-15

. [¶18] Unlike Rath , however, the district court here did not go beyond Janet Helbling’s motion to enforce the judgment. Rather, the court p rovided specific payment terms and security for Wayne Helbling’s remaining oblig ations in enforcing the original judgment. The court amended the divorce judgment to require Wayne Helbling to pay Janet Helbling $595,001.15 under a ten-year amo rtization of annual payments. The court’s amended judgment also requires him to pay her the rental value of the specified land, to execute a quitclaim deed transf erring a one-half undivided interest in the farmstead back to her, to maintain a life insurance policy
until his financia l obligations to her are paid in full, and sp ecifically grants Janet Helbling a lien on all of his assets until his financial obligations are paid in full. [¶19] We conclude Janet Helbling’s motion to enforce the judgment was sufficient for the district court to provide the additional payment terms for Wayne Helbling’s remaining obligations. The parties’ settlement agreement, as i ncorporated into the original divorce judgment at subsection c of paragraph 21, spec ifically granted the district court discretion to provide payment terms. Consistent with paragraph 21(c),

8the court’s additional provisions in the amended judgment addre ssed terms for Wayne Helbling’s remaining payments and also provided security for th ose payments as contemplated by the parties’ agreement. We conclude that in en forcing the judgment, the district court did not exceed the authority granted to it under the judgment to provide the payment terms and security in the amended judgment.

VI [¶20] We have considered Wayne Helbling’s remaining arguments an d conclude they are either without merit or unnecessary to our decision. The amended judgment
is affirmed. [¶21] Lisa Fair McEvers Daniel J. Crothers Jerod E. Tufte Jon J. Jensen Gerald W. VandeWalle, C.J.

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