*1 B income, Judy he was not entitled contends for those gross income from a deduction Judy contends Allen not was taxes. gross from his income entitled to a deduction expenses paying he was for medical on 14-09-09.7(3), N.D.C.C., es- 81] Section [¶ regular and consistent basis. presumption that the “a rebuttable tablishes that would result support child amount of 75-02-04.1-04(7)(e), Section support the child application of from the N.D.A.C., gross authorizes a-deduction from sup- of child is the correct amount guidelines “[p]ayments for made on actual medi- income sup- amount of child port.” presumptive The expenses child or for cal children amount, which is based port is a scheduled sought.” support being Based on whom monthly “obligor’s net income upon the testimony, Allen’s the referee found Allen support of children for whom the number per month for medical ex- paid about $150 § 75-02-04.1-10. being sought.” N.D.A.C. penses the children. The district court for obligor’s income is calculated first The net finding concluded the referee’s was not clear- gross income under N.D.A.C. computing ly Although Judy erroneous. characterizes 75-02-04.1-01(5), subtracting and then § “minuscule,” agree we Allen’s evidence 75-02-04.1-01(7). § in N.D.A.C. items listed finding the court that the referee’s on with this issue is not erroneous. 75-02-04.1-01(7)(a) (b), [¶ 82] Section N.D.A.C., “gross from proceedings authorize a deduction remand for further [¶ 36] We opinion. and state income tax consistent with this income” for federal “obligations] application on of stan- based have and tax tables.” We dard deductions WALLE, C.J., and [¶ 37] VANDE obligor an is not entitled to deduct
said NEUMANN, MESCHKE and income taxes the amount of federal and state SANDSTROM, JJ., concur. obligor actually designates to be withheld instead, income; obligor is enti- from his at- only to deduct the amount taxes
tled to the standard deductions and tax
tributable Mickels, E.g., Hallock v.
tables. support The child
guidelines preclude obligor an from withhold- artificially high amount of taxes from
ing an
meaning “obligation” Glatt, Defendant TOWNE f/k/a binding duty payment perform to make Appellant. Dictionary New World services. Webster’s Ed.1980). (Second College No. 960215. Civil ordinary meaning of “ob- 33] Under Dakota. Supreme Court of North to an artificial ligation,” Allen is not entitled tax and state income deduction federal April 1997. pay on his in- “obligationfs]” that he did May Rehearing Denied income. Because we have remanded
kind credit, we the amount of Allen’s recalculate net to recalculate Allen’s
also direct the court adjust- any appropriate
income and make obligation. support for Allen’s
ments *2 Pierce, Special
Rhonda Assistant Rae Bismarck, Attorney, plaintiff State’s appellee. (Glatt), se, pro defendant appellant. jurisdiction had under The district court
SANDSTROM, Justice. timely appeal § 27-05-66. The N.D.C.C. ten-day asked to calculate [¶ 1] We 4(a). has N.D.R.App.P. This Court to reconsider a motion period for VI, § jurisdiction under N.D. Const. Art. *3 59(j), if social and to decide N.D.R.Civ.P. § 28-27-01. and N.D.C.C. be payments should security dependency arrearage. child-support against a credited under affirm, concluding the motion
We II 59(j) timely, and no credit was N.D.R.Civ.P. A to reconsider is a motion [¶7] appropri- payments was dependency for judgment under to alter or amend motion ate. 59(j) tolling purposes “for filing ap notice of period [a]
the time for Kinsey, v. 499 peal.” Continental Cas. Co. 574, (N.D.1993); Elling see also N.W.2d (formerly known Austin Brenda Lee [¶ 2] Knudson, 814, 817 n. 5 son v. 498 N.W.2d Glatt) Anthony Towne Lee as Brenda (“Motions (N.D.1993) to reconsider are like Glatt) divorced (formerly known judgments to amend or alter motions Austin court awarded in The district N.D.R.Civ.P,”). 59(j), Although Rule Towne children, and custody two minor of their moved to reconsider the “JUDGEMENT him and ordered visitation awarded Towne (sic) 16, 1996,” July in this action on entered 1989, support. In $100-per-month child pay judgment of that date is not a the document disability began receiving benefits Towne opinion and order. but rather a memorandum Security Administration for a from the Social opinion the memorandum and order Because children re- beginning in 1986. The period final, we treat it as intended be was directly from the dependency benefits ceived judgment. Ins. v. a final See American Co. Security Administration. Social 182, Express, 554 N.W.2d Midwest Motor 1991, Towne accu- Between 1981 and [¶ 3] (N.D.1996) (memorandum n. 1 decisions arrearage. child-support mulated substantial appealable unless the mem generally not it in decision “demonstrates was orandum 1991, stipulation a written In final order of the tended to constitute the judgment, the district court sus- for amended court”). parental rights tempo- pended Towne’s responsibilities, includ- rarily suspended his A decision on a N.D.R.Civ.P. 8] [¶ support. He had over ing payment of child the sound discretion 59 motion is within $7,000 arrearage at child-support in Lapp v. Reeder Pub. Sch. the trial court. time. 164, (N.D.1996); S, No. 544 N.W.2d Dist. 1995, hearing requested a Towne Schatke, 833, N.W.2d Schatke arrearage. dis- modifying the to discuss (N.D.1994). not reverse the denial We will found, § 14-08.1- under N.D.C.C. trict court under N.D.R.Civ.P. 59 absent of a motion 05(l)(e), arrearage could not be child-support Lapp; of discretion. Schat manifest abuse and denied Towne’s retroactively modified if it its discretion “A trial abuses ke. 24, May 1995. On motion on December an-arbitrary, capricious, or unreason in acts issued an income the district court misap manner, misinterprets if or or able withholding requiring the Social Secu- order Bragg, 1997 N.D. plies law.” Filler v. per rity to withhold $100 Administration Weber, ¶ 225; Weber 559 N.W.2d income. Towne filed a from Towne’s month (N.D.1996). 781, 783 modification of his motion to reconsider arrearage. July child-support On the motion. court denied district III not abuse'its A trial court does appeals the of his mo- Towne denial 59(j) by denying a N.D.R.Civ.P. 59(j). discretion under N.D.R.Civ.P.
tion to reconsider
timely.
not
IV
if the motion was
See
motion
Brakke,
687, 690
Brakke v.
[¶ 14] Because
district court
1994) (it
when a trial
is an abuse of discretion
misinterprets
abuses its discretion if it
timely filed motion as untime
court denies a
law,
misapplies the
denial of Towne’s motion
timely
ly).
argues the motion was
Austin
if
would be an abuse of discretion
days
made
ten
within
because was
legally
against
were
entitled to a credit
opinion and order.
the memorandum
child-support arrearage
the social securi
ty dependency payments to his children.
59(j), “[a] mo
10] Under N.D.R.Civ.P.
Towne relies on our decision Guthmiller v.
judgment must
tion to alter or amend the
Guthmiller,
was made within
security dependency payments ‘made di-
59(j).
N.D.R.Civ.P.
rectly to
children or for
bene-
[the]
their
presumptively
change
fit’
constitute a
of
case,
In this
is no “notice
there
obligor
for which
circumstances
the
is en-
entry
judgment”
in
of
of
contained
the rec
support
titled to a credit toward his
obli-
However,
ten-day
the
limit
ord.
time
gation. The trial court’s decision in Guth-
filing a motion to reconsider
miller was rendered before the effective
59(j)
begin
will also
to run
N.D.R.Civ.P.
Chapter
date of the
amendments to
knowledge
“actual
when the defendant has
of
14-09, N.D.C.C., making the scheduled
...
entry of
order
evidenced in
[an]
guidelines
child
the
support under
the
Dakota,
Lang v. Bank North
the record.”
of
presumptively
support obligation.
correct
575,
(N.D.1985).
377 N.W.2d
guidelines may
Under the current
The record contains a sworn affida
may
appropriate
not be
to credit social
mailing stating copies
vit of
of the district
security dependency payments toward the
14,
finding and
of
order
December
court’s
obligor’s support obligation. See Stultz v.
1995,
January 16,
were mailed to Towne on
(Ind.1995).
Stultz,
served
each of
the
5(a).
under these
NDRCivP
“Whenever
WALLE, C.J., concurs.
[¶ 17] VANDE
required
permitted
to be
rules service is
by an at-
upon
party represented
made
a
Justice,
MARING,
concurring.
specially
upon
torney, the service must be made
the
majority opinion, but
I
in the
concur
upon
is
attorney
party
unless service
the
my
our
to voice
concern with
specially
5(b).
write
by
court.” NDRCivP
ordered
the
Lang
North
v. Bank
prior decisions
attorney
upon par-
upon the
a
[or
“Service
of
(N.D.1985)
Dakota,
and
N.W.2d 575
by
mailing copy
ty]
be made
...
a
must
Thorson,
mail notice a method of NEUMANN, J., concurs. tion, receipt containing the the of a letter proof of knowl- information is conclusive Mund, edge. Rambough, (N.D.1988) Otesa, (quoting Brown v. (N.D.1956)). Here, ... that [he] does not contest received
[Towne]
the in the mail. See State v. Tini- order[ ] (N.D.1985)....
nenko,
my opinion, judge’s affida- by proves
vit of service mail effective no- by much as one
tice under the rules as
lawyer’s secretary. ND 50
Moreover, majority’s decision that the notice,” mailing “actual affidavit of was not Rayann Lyn OWAN, Plaintiff notice was not “served because the Appellee, prevailing party upon party” the adverse 77(d), ignores NDRCivP Code definition of “actual notice”: “Actual notice Stephen OWAN, Charles Defendant express shall consist in information of a *6 Appellant. Here,
fact.” NDCC 1-01-23. the record No. Civil 960235. “express shows that had informa- [Towne] order[ ] tion” that the had been entered Supreme Court of North Dakota. trial [he] therefore had “ac- tual notice.” April event, any form should not control func- really tion. It should not matter where from, long
the notice comes as as the given.
record shows the notice was (“Where
See NDCC 1-01-12 a form is
prescribed, deviations therefrom not af-
fecting the substance or calculated to mis- used.”).
lead does not vitiate the form To
make a distinction that formalistic
okay give for the court to the notice if the so, attorney
prevailing asks it to do as in Lizakowski,
Lizakowski v.
(N.D.1981), but not if the court does it on initiative, here, nothing
its own has [appellant]
do with the fact that re- Here, shows,
ceived notice. the record affidavit,
through secretary’s copies [Towne], order[ were mailed to ] statutory says presumption [he] re- require. [it].
ceived That is all our rules enough
believe here.