Devine v. Hennessee
848 N.W.2d 679
| N.D. | 2014Background
- Divorce in 2001; two minor children; joint legal custody; Devine primary residential with liberal visitation.
- Fourth amended judgment (Sept. 2011) set Hennessee’s child support at $1,200/month based on Air Force income and travel deductions.
- April 2013 Hennessee medically discharged; moved to Tucson; filed motion to amend child support asserting reduced income.
- Hennessee testified she has $1,533 monthly retirement pay; VA disability benefits pending; plans for GI Bill education; not currently employed.
- Devine sought disclosure of Hennessee’s disability/financial records; court allowed telephonic appearance for Hennessee and admitted limited evidence from Hennessee’s affidavit/ testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court properly applied guidelines and did not shift burden | Devine contends the court shifted burden to prove income. | Hennessee argues she provided sufficient evidence of reduced income. | No improper burden shifting; court properly evaluated evidence. |
| Whether the court's income determination for Hennessee was adequately evidenced | Devine argues insufficient documentation; seeks more records. | Hennessee provided sworn affidavit/testimony addressing income. | Affidavit/testimony deemed adequate to apprise court of gross income. |
| Whether the court properly refused to impute additional income or underemployment | Devine argues Hennessee is underemployed and should have imputed income. | Court considered health/disability and found no basis to impute; underemployment not established. | Court did not abuse discretion; no imputation of additional income. |
| Whether all potential income sources (disability, retirement, GI Bill) were properly considered | Devine seeks consideration of GI Bill benefits and disability in income. | Speculative benefits not proven; court used sworn testimony and existing income. | Trial court’s approach acceptable; relied on admitted evidence and credibility findings. |
Key Cases Cited
- Schwalk v. Schwalk, 2014 ND 13 (ND (2014)) (guidelines and burden in modifying child support; evidence standards)
- Entzie v. Entzie, 2010 ND 194 (ND (2010)) (net income essential for correct child support; income findings required)
- Krueger v. Krueger, 2011 ND 134 (ND (2011)) (requirement to document income under guidelines)
- Berge v. Berge, 2006 ND 46 (ND (2006)) (need for clear statement of income calculation under guidelines)
- Knoll v. Kuleck, 2004 ND 199 (ND (2004)) (imputation of income when reliable information is lacking)
- Torgerson v. Torgerson, 2003 ND 150 (ND (2003)) (imputation of income based on earning capacity)
- Halberg v. Halberg, 2010 ND 20 (ND (2010)) (presumptions for underemployment thresholds under guidelines)
- Shipley v. Shipley, 509 N.W.2d 49 (ND (1993)) (necessity of documentary evidence for accurate gross income)