855 N.W.2d 105
N.D.2014Background
- Cheryl and Brian Wilson married in 1996, separated in 2005, and have two minor children; children lived with Cheryl and Brian made voluntary support payments during separation.
- Brian served in the U.S. Air Force and was stationed overseas (Djibouti 2007–2009; London 2009–2012); he received base pay plus allowances (BAH, BAS, OHA, COLA).
- Brian filed for divorce in November 2012; district court awarded Cheryl primary residential responsibility and divided marital property (Cheryl sought more discovery about a Wells Fargo account).
- Court reserved child support, later found past support should begin August 2011 (Cheryl applied for medical assistance then and the State attempted service), and computed support using gross income that included base pay, BAH, BAS but excluded OHA and COLA.
- District court ordered monthly child support amounts for 2011–2013 and credited Brian for voluntary payments; Cheryl appealed property-discovery and child support calculations.
- Supreme Court affirmed the property division, reversed the child support ruling for 2011–2012, and remanded for recalculation including OHA and COLA as gross income.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court abused discretion by denying continuance/keeping record open to obtain Wells Fargo records | Cheryl: court should have continued or kept record open because Wells Fargo records might contain major marital asset and Brian evaded disclosure | Brian: Cheryl had the burden to obtain releases/subpoena; sufficient evidence in record; court followed discovery orders | Denied abuse of discretion; court properly required Cheryl to obtain records and did not act arbitrarily; property division affirmed |
| Proper start date for past child support under N.D.C.C. §14-08.1-01 | Cheryl: start date arbitrary; support should run earlier (after 2005 separation) | Brian: he voluntarily paid support during separation; court acted reasonably using August 2011 when State attempted service | Court did not abuse discretion in setting August 2011 start date given voluntary payments and State’s action in Aug 2011 |
| Whether Brian’s 2009 $30,000 career service bonus should be included in gross income for child support | Cheryl: bonus is income and should be allocated over remaining years for support calculation | Brian: bonus was nonrecurring and not part of current income; district court has discretion on allocation | Court declined to decide on bonus inclusion (no findings below); affirmed district court’s omission because Cheryl failed to raise allocation argument below |
| Whether military OHA and COLA are gross income for child support purposes | Cheryl & State: OHA and COLA should be included as gross income | Brian & district court: OHA/COLA reimburse extraordinary overseas expenses and are not income for support | Reversed: OHA and COLA are military subsistence and thus gross income under guidelines; remand to recalculate 2011–2012 support including them |
Key Cases Cited
- Hagel v. Hagel, 2006 ND 181 (discusses awarding past child support under statute)
- Hammeren v. Hammeren, 2012 ND 225 (standard for review of past support awards)
- Hartleib v. Simes, 2009 ND 205 (district court discretion over evidence and trial conduct)
- Dupay v. Dupay, 2010 ND 87 (allocation methods for nonrecurring income in support calculations)
- Berge v. Berge, 2006 ND 46 (broad definition of gross income under guidelines)
- Berkbigler v. Berkbigler, 921 P.2d 628 (Alaska) (COLA/OHA treated as income)
- Wiebusch v. Wiebusch, 927 N.E.2d 64 (Ohio) (COLA is gross income)
- Dortch v. Straka, 801 P.2d 279 (Washington) (federal COLA is gross income)