Schwalk v. Abfalter, 2014 ND 13

Parties divorced in 2004; Heather Abfalter awarded primary residential responsibility for one child; original support set at $207/month and later modified in 2011 to $927/month based on Branden Schwalk’s higher income.
In March 2013 Schwalk moved to modify child support, claiming he changed jobs, relocated to Montana, and his net monthly income fell to about $2,500; he requested support of $350/month and a downward deviation for travel expenses.
Schwalk filed an affidavit and pay stubs but did not request or schedule an evidentiary hearing; the State requested a hearing but did not secure a date.
The district court denied the motion, finding Schwalk voluntarily changed employment, a hearing was required (the court later concluded that was erroneous), and the motion lacked sufficient legal and evidentiary support.
On appeal the Supreme Court affirmed: although a hearing is not required as a matter of law, Schwalk failed to carry his burden to show the employment change was not voluntarily made to reduce support and failed to prove travel expenses for a deviation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a hearing is required to decide a child support modification motion	Schwalk: no hearing necessary; affidavit and papers suffice	State/Abfalter: hearing appropriate; contested facts exist	Court: hearing not legally required but district court’s ultimate rulings were supported on other grounds
Whether Schwalk’s reduced income justified guideline-based modification	Schwalk: income dropped to ~$2,500/month, so support should be reduced	Abfalter: change appears seasonal/voluntary; pay stubs not representative	Court: Schwalk failed to prove change was not voluntary; finding of voluntary change not clearly erroneous; modification denied
Whether income should be imputed due to voluntary employment change	Schwalk: did not explicitly argue imputation should not apply	Abfalter/State: imputation appropriate if change was voluntary	Court: under rule, income may be imputed; Schwalk didn’t present required evidence on prior earnings, so no reduction granted
Whether a downward deviation is warranted for travel expenses to exercise parenting time	Schwalk: incurs substantial travel, lodging, and food costs and seeks reduction	Abfalter: Schwalk often does not exercise all parenting time; expenses unproven	Court: Schwalk failed to prove actual expenses or practices; court did not abuse discretion in denying deviation

Buchholz v. Buchholz, 590 N.W.2d 215 (N.D. 1999) (standards of review for child support determinations)
Dupay v. Dupay, 782 N.W.2d 42 (N.D. 2010) (burden on movant to show existing support does not conform to guidelines)
Christoffersen v. Giese, 691 N.W.2d 195 (N.D. 2005) (calculation and imputation principles when voluntary employment change occurs)
Logan v. Bush, 621 N.W.2d 314 (N.D. 2000) (obligor must support children to best of abilities; voluntary job changes can’t unfairly shift burden)
Keita v. Keita, 823 N.W.2d 726 (N.D. 2012) (burden of proof for deviations from child support guidelines)
Pember v. Shapiro, 794 N.W.2d 435 (N.D. 2011) (trial court discretion in granting deviations)
Hendrickson v. Hendrickson, 553 N.W.2d 215 (N.D. 1996) (insufficient evidence of travel expenses justifies denying deviation)