IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 154

Tim Hamburger, Plaintiff and Appellant

v.

Kimberly Hamburger, Defendant and Appellee

No. 20220051

Appeal from the District Court of Stark County, Southwest Judicial District, 

the Honorable James D. Gion, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Dennis W. Lindquist, Dickinson, N.D., for plaintiff and appellant; submitted 

on brief.

Jami L. Haynes, Dickinson, N.D., for defendant and appellee; submitted on 

brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

AUGUST 4, 2022 

STATE OF NORTH DAKOTA
1

Hamburger v. Hamburger

No. 20220051

Tufte, Justice.

[¶1] Tim Hamburger appeals from an order denying his motions for relief 

from the divorce judgment and to amend his motion for relief. He argues the 

district court erred by finding there was no agreement or acquiescence to a 

change of residential responsibility, denying him an award of child support, 

denying him an evidentiary hearing, and failing to award him attorney’s fees. 

We affirm the order.

I

[¶2] Tim and Kimberly Hamburger are the parents of T.L.H., who was born 

in 2003. The parties divorced in 2017, and the district court awarded Kimberly 

Hamburger primary residential responsibility of T.L.H. and ordered Tim 

Hamburger to pay child support. In September 2019, Roughrider North 

Human Services Zone removed T.L.H. from Kimberly Hamburger’s care and 

placed the child with Tim Hamburger. T.L.H. resided with Tim Hamburger 

until June 2021, at which point T.L.H. attended basic combat training. Upon 

completion of basic training, T.L.H. moved into his own apartment. T.L.H. 

turned eighteen years old in November 2021.

[¶3] In July 2020, after T.L.H. had lived with Tim Hamburger for 

approximately 10 months, Tim Hamburger moved to stay his child support 

obligation. The district court granted the stay effective August 2020 and 

ordered Kimberly Hamburger to repay any child support dating back to August 

2020.

[¶4] In May 2021, Tim Hamburger moved for relief from the judgment to 

award him primary residential responsibility of T.L.H. and establish a child 

support obligation for Kimberly Hamburger. In November 2021, Tim 

Hamburger moved to amend his motion to include back child support dating 

back to when T.L.H. moved in with him. Tim Hamburger abandoned his claim 

for primary residential responsibility, and the sole issue that remained was 

child support. After a hearing, the district court denied the motion to amend, 
2

concluding denial was in the interest of justice and the amendment would be 

futile. The court also denied the motion for relief from the judgment, finding 

all the issues were either resolved or moot, and cancelled the evidentiary 

hearing.

II

[¶5] Under N.D.R.Civ.P. 60(b), a court may relieve a party from a final 

judgment. The court’s decision to deny relief will not be overturned on appeal 

absent an abuse of discretion. Krizan v. Krizan, 1998 ND 186, ¶ 13, 585 N.W.2d 

576. Under N.D.R.Civ.P. 15(a)(2), a party may amend its pleading with the 

court’s leave. “A district court has wide discretion in deciding matters relating 

to amending pleadings after the time for an amendment as a matter of course 

has passed.” Darby v. Swenson Inc., 2009 ND 103, ¶ 11, 767 N.W.2d 147. We 

will not reverse a court’s denial of a motion to amend unless it abused its 

discretion. Id. The court abuses its discretion when it acts arbitrarily, 

unconscionably, or unreasonably, or when its decision is not the product of a 

rational mental process leading to a reasoned determination. Id. at ¶ 12.

III

A

[¶6] Tim Hamburger argues Kimberly Hamburger agreed or acquiesced to a 

change in residential responsibility, retroactively terminating his child support 

obligation and retroactively establishing a child support obligation for 

Kimberly Hamburger from when T.L.H. began residing with him in September 

2019.

[¶7] “A court has continuing jurisdiction to modify child support.” Marchus v. 

Marchus, 2006 ND 81, ¶ 8, 712 N.W.2d 636. “A vested child support obligation, 

however, cannot be retroactively modified.” Id.; see also N.D.C.C. § 14-08.1-

05(1)(c). Thus, when a court forgives past due child support obligations, it has 

modified a child support order. Marchus, at ¶ 8. “Generally, a modification of 

child support should be made effective from the date of the motion to modify, 

absent good reason to set some other date.” Id.
3

[¶8] In Brakke v. Brakke, 525 N.W.2d 687 (N.D. 1994), “this Court recognized 

a narrow departure from the rule of no retroactive modification of child support 

obligations.” Marchus, 2006 ND 81, ¶ 10. We have previously summarized the 

Brakke decision:

Brakke involved an agreement by both parents to change custody 

of their daughter for an extended period of time. Following this

change, the father requested retroactive relief from his child 

support payments under a prior judgment. We concluded Rule 

60(b)(vi), N.D.R.Civ.P., could be applied to relieve the father from 

his child support obligations back to the date he became the child’s 

custodial parent. However, in retroactively invalidating Mr. 

Brakke’s support payments, we clearly stated this decision was not 

a retraction from our position that “vested support rights cannot 

be retroactively modified.” Thus, application of Brakke is limited 

to cases where both parties agree to an actual change in custody 

for an extended period of time.

Marchus, at ¶ 10; see also Brakke, at 690. In addition to the requirement that 

the change of custody be for a “long duration, a prompt motion to modify should 

be made.” Brakke, at 690. In Brakke, the Court excused the father’s delay in 

making his motion because the delay was at the mother’s request. Id. “Further, 

the guidelines expressly prohibit an abatement for temporary periods in which 

the child resides with the non-custodial parent.” Marchus, at ¶ 7 (citing N.D. 

Admin. Code § 75-02-04.1-02(2)).

[¶9] Tim Hamburger asserts that Kimberly Hamburger agreed or acquiesced 

to a change in residential responsibility, satisfying the exception in Brakke. For 

support, he cites Kimberly Hamburger’s brief in response to his motion for 

change of residential responsibility, which states that she “did not object to a 

change in residential responsibility.” Kimberly Hamburger argues that 

although she initially did not object to a change in residential responsibility, 

the circumstances changed, including T.L.H. enlisting in the National Guard, 

attending basic training, and moving into his own apartment.

[¶10] No stipulation or agreement was filed with the district court. Further, 

this case is different from Brakke in that Tim Hamburger did not provide any 

excusable reason for the delay in moving to modify primary residential
4

responsibility, which did not occur until May 2021 (20 months after T.L.H. 

began residing with him). Thus, we conclude the court did not err by refusing 

to retroactively terminate Tim Hamburger’s child support obligation or 

recognize an obligation by Kimberly Hamburger.

B

[¶11] Alternatively, Tim Hamburger contends he is due back child support 

because he became the parent with primary residential responsibility by 

operation of law when T.L.H. began residing with him. He cites the definition 

in N.D. Admin. Code § 75-02-04.1-01(9), which provides, “‘Parent with primary 

residential responsibility’ means a parent who acts as the primary caregiver 

on a regular basis for a proportion of time greater than the obligor, regardless 

of descriptions such as ‘shared’ or ‘joint’ parental rights and responsibilities 

given in relevant judgments, decrees, or orders.” Tim Hamburger does not 

provide any further supporting authority for the proposition that this 

definition overrides the court’s determination of primary residential 

responsibility in the judgment. This definition explains that labels such as 

“shared” or “joint” in describing a party’s parental rights and responsibilities 

in a judgment are not determinative. However, the divorce judgment

unambiguously states that Kimberly Hamburger is awarded primary 

residential responsibility of T.L.H. Tim Hamburger does not argue otherwise 

and admits he abandoned his request to modify primary residential 

responsibility in the district court. Thus, we conclude the definition of “[p]arent 

with primary residential responsibility” in N.D. Admin. Code § 75-02-04.1-

01(9) does not override the court’s determination of primary residential 

responsibility as stated in an unambiguous judgment.

C

[¶12] Tim Hamburger asserts he is due back child support under N.D.C.C. 

§ 14-08.1-01, which provides:

A person legally responsible for the support of a child under the 

age of eighteen years who is not subject to any subsisting court 

order for the support of the child and who fails to provide support, 

subsistence, education, or other necessary care for the child, 
5

regardless of whether the child is not or was not in destitute 

circumstances, is liable for the reasonable value of physical and 

custodial care or support which has been furnished to the child by 

any person . . . .

(Emphasis added.) Tim Hamburger argues he is due back child support for his 

support and care of T.L.H. while he resided with him. However, this statute,

by its plain language, does not apply in the case of a judgment providing the 

obligations of the parties in supporting their minor child, such as here. See also 

Hagel v. Hagel, 2006 ND 181, ¶ 6, 721 N.W.2d 1 (noting N.D.C.C. § 14-08.1-01 

governs when there is no court-ordered child support).

D

[¶13] Tim Hamburger contends the district court erred by denying him child 

support for the period from when he moved for primary residential 

responsibility in May 2021 to when T.L.H. moved into his own apartment in 

September 2021. However, at no point in time was Tim Hamburger awarded 

primary residential responsibility, and he ultimately abandoned his request to 

modify residential responsibility in the district court. “[T]he child support 

guidelines contemplate child support payments by the parent without primary 

residential responsibility to the parent with primary residential 

responsibility.” Crandall v. Crandall, 2011 ND 136, ¶ 10, 799 N.W.2d 388. This 

is not the case of a party seeking reimbursement of expenses against a parent 

where no judgment delineates the parent’s obligation under N.D.C.C. § 14-

08.1-01. Thus, we conclude the court did not err in denying Tim Hamburger 

child support from May to September 2021.

IV

[¶14] Tim Hamburger states the district court erred by denying him an 

evidentiary hearing. He does not support his statement with any law or 

argument. We conclude he waived this issue on appeal. See Riemers v. Grand 

Forks Herald, 2004 ND 192, ¶ 11, 688 N.W.2d 167 (“[A] party waives an issue 

by not providing supporting argument and, without supportive reasoning or 

citations to relevant authorities, an argument is without merit.”).
6

V

[¶15] Tim Hamburger argues the district court erred by failing to award him 

attorney’s fees.

[¶16] “Generally, this Court applies the ‘American Rule,’ which requires 

parties to bear their own attorney’s fees unless the fees are expressly 

authorized by statute.” Lizakowski v. Lizakowski, 2017 ND 91, ¶ 25, 893 

N.W.2d 508. Tim Hamburger cites to one statute authorizing attorney’s fees, 

N.D.C.C. § 14-09-29(4), which provides,

In any proceeding dealing with parental rights and responsibilities 

in which a parent is found to have perpetrated domestic violence, 

and there exists one incident of domestic violence which resulted

in serious bodily injury . . . all court costs, attorney’s fees . . . must 

be paid by the perpetrator of the domestic violence unless those 

costs would place an undue financial hardship on that parent.

[¶17] Tim Hamburger does not direct us to any finding that Kimberly 

Hamburger has perpetrated domestic violence. Although the record contains a 

criminal complaint charging Kimberly Hamburger with two counts of domestic 

violence, the record does not show there has been a finding of domestic violence

by the court or any factfinder. Accordingly, Tim Hamburger was not entitled to 

attorney’s fees.

VI

[¶18] The parties’ remaining arguments are either unnecessary to our decision 

or without merit. The order is affirmed.

[¶19] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte