949 N.W.2d 832
N.D.2020Background
- Sabrina and Matthew Bickel (married 2000) share two minor children; a 2018 Marital Termination Agreement set Matthew’s child support at $226/month.
- In May 2019 Sabrina moved to amend child support, alleging Matthew could earn more as a physician assistant; she also moved to compel discovery and sought attorney’s fees under N.D.R.Civ.P. 37.
- The district court ordered production of Matthew’s tax returns and pay stubs for the prior two years but did not rule on attorney’s fees.
- The court found Matthew’s 2018 income (about $95,007) was not predictive and relied on income earned Feb 15–Sept 30, 2019 ($46,696.74) to calculate annualized support; it entered an amended judgment setting support at $875/month after correcting an earlier travel deduction error, but left the net monthly income statement inconsistent.
- The court declined to impute income based on physician assistant earning capacity (finding no presumption of underemployment under the federal-minimum-wage test), set the modification’s effective date as Oct 1, 2019 (Sabrina requested June 1), and did not explain several calculation choices.
- Sabrina appealed, arguing the court miscalculated support (partial-year income, deductions, in-kind housing), mis-set the commencement date, and failed to award attorney’s fees for discovery violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of partial-year 2019 income to calculate annual net income | Court should not base annual support on income earned for less than 12 months without explaining why that partial period reliably predicts annual income; use 2018 or explain extrapolation | Court relied on 2019 earnings because 2018 was atypical and declined to extrapolate from other contracts | Reversed and remanded: court must explain why the partial-year income was appropriate, show the math to arrive at annual/monthly net income, and if not using 12-month evidence explain why it did not extrapolate. |
| Inclusion/exclusion of deductions and in-kind housing (health insurance, housing in Germany, travel deduction) | Court omitted or misapplied deductions and did not state whether in-kind housing was included in net income | Some concessions by Matthew (e.g., health insurance deduction error) | Remanded to adjust net income and child support: eliminate improper health-insurance deduction, address in-kind housing income, and correct net monthly income calculation. |
| Underemployment / imputed income (earning capacity as a physician assistant) | If partial-year income used, Matthew is underemployed and income should be imputed based on PA earning capacity | Court found no presumption of underemployment because income exceeded the federal-minimum-wage threshold and Matthew had not worked as a PA since 2016 | Remanded for further findings: court must assess underemployment under both § 75-02-04.1-07(2)(a) (average earnings for similar work) and (b) (minimum-wage test) and make requisite imputation findings if warranted. |
| Effective date for modified support | Commencement should be June 1, 2019 (date requested in motion) | Court set Oct 1, 2019, without explanation | Remanded: court must explain why it set Oct 1 rather than the motion filing date (generally modification is effective from the motion date absent explanation). |
| Attorney’s fees for discovery violations | Fees should be awarded under N.D.C.C. § 14-05-23 or Rule 37(a)(5) because Matthew failed to provide discovery and increased litigation time | District court ordered production but did not rule on fees | Remanded: because the motion to compel obtained relief, court must determine whether to award fees under Rule 37(a)(5) or statutory fee-shifting and explain its decision. |
Key Cases Cited
- Minyard v. Lindseth, 930 N.W.2d 626 (clarifies standards: law, fact, discretion review for child support issues)
- Berge v. Berge, 710 N.W.2d 417 (trial court must state how it arrived at obligor’s income and support calculation)
- Korynta v. Korynta, 708 N.W.2d 895 (court must not extrapolate partial-period income without finding past circumstances unreliable as predictors)
- Brouillet v. Brouillet, 875 N.W.2d 485 (permissible to extrapolate recent paystub income when prior-year income is not a reliable indicator and court explains basis)
- Marchus v. Marchus, 712 N.W.2d 636 (modification effective generally from date of motion unless court explains a later date)
- Brew v. Brew, 903 N.W.2d 72 (standards for awarding attorney’s fees in divorce matters; fees may be warranted where a party unreasonably increased litigation)