908 N.W.2d 690
N.D.2018Background
- Thomas J. Solwey and Lisa D. Solwey (now Hilbert) divorced in 2013; Hilbert was initially awarded primary residential responsibility for four children and Solwey ordered to pay child support.
- Solwey filed motions to modify residential responsibility in 2015; an initial motion within two years was dismissed for lack of prima facie showing and not appealed; a subsequent motion led to this Court reversing and remanding for an evidentiary hearing.
- At the March 2017 evidentiary hearing the district court limited consideration to the twins (C.T.S. and K.E.S.), but testimony was received about all minors; the court later issued findings for each child.
- The August 2017 first amended judgment awarded primary responsibility: Hilbert for M.L.S. and K.D.S.; Solwey for C.T.S.; and shared equal responsibility for K.E.S.; child support was modified with a commencement date of June 2017.
- Solwey appealed, but filed an incomplete transcript; the Court noted appellants bear the risk of incomplete records on appeal.
Issues
| Issue | Plaintiff's Argument (Solwey) | Defendant's Argument (Hilbert) | Held |
|---|---|---|---|
| Proper commencement date for modified child support | Court should use filing date (or earlier) for effective date because parties were on notice | District court properly set a later commencement (June 2017) because Solwey never moved to modify support and retroactive modification is impermissible | Affirmed: district court did not abuse discretion; explained reasonableness and prohibition on retroactive modification |
| Whether district court should have considered youngest child (K.D.S.) in modification hearing | Family is cohesive; all children should be considered together so K.D.S. must be included | Court limited hearing to twins based on pleadings and prior remand scope | Court found district court erred in initially excluding K.D.S., but harmless because testimony about K.D.S. was considered and findings were made |
| Whether K.D.S. should have been allowed to testify or be interviewed in-chambers about custody preference | K.D.S. (age 9) is mature enough; should have at least been interviewed to assess maturity | District court reasonably excluded her because record lacked sufficient offer of proof regarding maturity | Affirmed: no abuse of discretion; appellant failed to preserve record/transcript and did not make sufficient offer of proof to show clearly erroneous findings |
| Appellate reviewability given incomplete transcript | N/A (procedural) | N/A | Court reiterated appellant’s burden to provide full transcript; absence precludes meaningful review of claimed errors |
Key Cases Cited
- Gabriel v. Gabriel, 519 N.W.2d 293 (N.D. 1994) (explains rationale for making support modifications effective at filing date to prevent dilatory tactics)
- Geinert v. Geinert, 649 N.W.2d 237 (N.D. 2002) (modification generally effective from motion date absent good reason; court must explain later effective date)
- Marchus v. Marchus, 712 N.W.2d 636 (N.D. 2006) (vested child support obligations cannot be retroactively modified)
- Reineke v. Reineke, 670 N.W.2d 841 (N.D. 2003) (abuse of discretion to refuse child testimony without assessing maturity for older children)
- Hammeren v. Hammeren, 823 N.W.2d 482 (N.D. 2012) (upholding exclusion of testimony where no sufficient offer of proof about child’s maturity)
- Frueh v. Frueh, 771 N.W.2d 593 (N.D. 2009) (child maturity is fact-driven; appellate court defers to district court’s credibility and factual findings)
- Solwey v. Solwey, 888 N.W.2d 756 (N.D. 2016) (prior appeal reversing district court and remanding for evidentiary hearing)
- State v. Cook, 843 N.W.2d 1 (N.D. 2014) (appellant must order and file transcript when evidence hearing held; failure risks forfeiture on appeal)