dissenting.
[¶ 22] Although I agree that a district court is not bound by a stipulation requiring an automatic change of custody upon the occurrence of a specific event, I dissent because of the majority’s disposition of this case.
I
[¶ 23] The case should be remanded to the district court for a hearing on the motion to relocate without the validity of the stipulation clouding the proceeding.
[¶ 24] This case differs from several of those cited by the majority, because Doni Zeller did not file a motion for change of custody in response to Jenny Zeller’s motion to relocate. See, e.g., Hovater v. Hovater, 577 So.2d 461 (Ala.Civ.App.1990); In re Marriage of Thielges, 623 N.W.2d 232 (Iowa Ct.App.2000); Williams v. Pitney, 409 Mass. 449, 567 N.E.2d 894 (1991); Phillips v. Jordan, 241 Mich.App. 17, 614 N.W.2d 183 (2000); Wilson v. Wilson, 12 Va.App. 1251, 408 S.E.2d 576 (1991); Watt v. Watt, 971 P.2d 608 (Wyo.1999). Rather, he relied solely on the couple’s previous stipulation.
[¶ 25] Doni Zeller’s reliance upon the parties’ stipulation was not misplaced, because of the absence of North Dakota case law or statutes regarding stipulations for automatic changes of custody. While a majority of jurisdictions treat stipulations regarding the automatic change of custody as void, this view is not unanimous. See, e.g., Carr v. Carr, 207 Ga.App. 611, 429 S.E.2d 95 (1993); Maeda v. Maeda, 8 Haw.App. 139, 794 P.2d 268 (1990).
[¶ 26] A review of the district court’s proceedings shows the court was focusing on the validity of the stipulation rather than the statutory test for relocation. I would remand for a hearing on the motion to relocate without the confusion of the validity of the stipulation.
II
[¶ 27] Although I disagree with the majority’s disposition of this case, I do not read its opinion as precluding Doni Zeller from immediately seeking a change of custody. The Court’s remand instructions are not a disposal of a motion for modification on its merits under N.D.C.C. § 14-09-*6006.6(2) (“if a motion for modification has been disposed of upon its merits, no subsequent motion may be filed within two years of disposition of the prior motion”). Doni Zeller may file a motion for change of custody immediately upon remand.
[¶ 28] If Doni Zeller should choose to seek a change of custody, he would be free to argue the couple’s stipulation is evidence of a material change in circumstances. See, e.g., Studenroth v. Phillips, 230 A.D.2d 247, 657 N.Y.S.2d 257 (N.Y.App.Div.1997) (parties may stipulate what will constitute a change in circumstances); deBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843 (1994) (parties may stipulate a move by either parent outside a specific geographic area would constitute a change in circumstances). He would also be free to argue the stipulation is evidence the couple agreed the best interests of the children would be served by allowing them to continue to live in North Dakota once Jenny Zeller accepted a transfer out of North Dakota. 1 Alexander Lindey <& Louis I. Parley, Lindey & Parley on Separation Agreements and Antenuptial Contracts § 20.76[3][c] (2d.2001).
[¶ 29] Dale V. Sandstrom