*1 order, juris- do not have protective we later it at time. to review
diction denying the order Sharon 12] We affirm appeal the amended
an of time to extension spousal support, her eliminating
decree appeal late from the
we therefore dismiss her
amended decree. C.J., VANDEWALLE, 13]
[f
MAKING, SANDSTROM, NEUMANN
JJ., concur.
Misty ULLMAN, rel. ex Peter
M. Defendant ULLMAN Associates, Craig M. Richie of Richie & Appellant. Fargo, appellant. for defendant and Serklund, Lundberg, Holman of Maureen
Civil No. 970309. Ltd., Erickson, McLean, Fargo, Marcil for & Supreme Court North Dakota. plaintiff appellee. April 8, 1998. MESCHKE, Justice. Misty appealed Ullman de- 1] Berg’s
nying to increase Derek her motion child, support for their Peter Michael. We part, part, affirm in reverse in and remand complete development of Derek’s imput- application correct of the law parent. underemployed income to an [¶ Peter was bom December Misty they were unmarried and Derek while high of social school students. The director April sued Peter in 1995 to es- services paternity tablish Derek’s and his duty. judgment was entered March 1996, declaring Derek to Peter’s natural pay monthly ordering father support. Because Derek was still newly part-time at high school franchise, pizza at a support obligation monthly, was set at $50 *2 then, required pay monthly “anticipated until Derek annual $10 Derek was $8,250,” arrearage $880, for months from of a the ten less taxes of net for a annual $485 Apparent- April through January $7,370. Dividing income of that 12 for a ly employment Derek’s anticipating full-time $614, monthly net income of Derek said he May in high graduation after his school “only slightly was less than the judgment directed re-assessment Der- to me in the last order.” support obligation light in “ongoing ek’s August At an hearing, [¶ 6] Derek any ability in change material [his] age testified twenty, he was had finished pay....” high school in and had worked as a judicial hearing, After a June a refer- delivery pizza driver and a for “pretty maker change ee “a material [Derek’s] found years.” close two He had not “looked for upon ... the fact circumstances that other employment” “[b]ecause I believe it’s a graduated high school;” has from [he] now enough job.” good agreed He he had not parents pays Derek resides with his $50 time, said, working been full but he “I’m rent; per month in and he “suffers from no doing pretty to full close time.” He had not full-time, disabilities and able to earn jobs “looked any you for where could find minimum wage income of at least ... employment full time” “because I’ll be start- ($625.00)per pay.” month take-home De- ing agreed school this fall.” He “there would spite the direction N.DAdmin.C. 75-02- nothing keeping have been get- from [him] 04.1-02(10) “[e]aeh that ting job” began he school at how must include a statement of ... that net Northwest College, Technical but he felt it determined,” income was the referee’s order very “would be hard.” He applying admitted monthly how did not show net in- college Misty for after moved to increase However, come was found nei- $625. support. ther sought side review and the order be- purchasing [¶ 7] Derek testified income, came final. From his $625 Chrysler LeBaron in June Convertible pay the referee ordered Derek to $102 to obligating himself for a month $118 support. years up my for two fix “to car.” He said he 25,1997, February On Derek sued to had no other source of income besides his clarify “right and enforce his reasonable His tips. pay last stub showed judgment. the paternity visitation” in On tips period, that for two-week he May 19, 1997, while settlement visitation agreed, you but when asked “how much do pending, Misty moved “for an increase in normally pay period tips,” make in each support obligation on the [Derek’s] child he had “no idea.” grounds he underemployed.” Her Misty’s argued [f counsel more in- alleged grossly affidavit Derek “is underem- ployed” she come to be to Derek than what he because had “reason believe earning: from North Dakota Job Service average pizza delivery person signifi- makes making This man is his chosen —has cantly money making more than [Derek] part own to work He admission time.
this time.” jobs.... looked for other He’s disputed pizza “that
[¶ 5] Derek’s affidavit worked than 40 hours a week. He delivery persons Fargo pretty good job. earn thinks it’s a He’s mak- wage.” ing To paying evidence think month for $108 —he’s single pay money attached two-week stub of his child. had He’s year-to-date showing gross wages through buying money ear. another He’s had $4,125.42. do, obviously June 1997 of insisted to do what he live wishes pay apartment, away “cannot afford to additional in an live from home. He amount in says going at this time” because now back go he’s school_ “my regular monthly expenses already thought ex- never about do- [H]e my ceed At “an income.” that until after these motions were $317 per pay period” pay periods for 13 two-week made. trying years, to find some- graduate can do more two instead high
...
school
thing else.
part
delivering making
time
than work
pizzas.
in the last time and
... when he came
playing, quote unquote,
game with
very
makes it
difficult
statute
working part
Court he was
Wage
and Benefit
prove but under
*3
juncture
at
They
argued
that
time.
then
this,
Survey,
it
is attached to
states
which
money
he hasn’t
because he’s
had
person
a
average
and it
what
shows
working part time.
making pizzas
sorry, be-
would make
—I’m
But,
Misty’s
argued
mainly,
counsel
[¶ 10]
ing
delivery person
a
if he can deliver
had
to earn more:
abilities
being total-
pizzas,
I
think
which don’t
he’s
tips.
My position
he
in
I
this:
ly
in what makes
...
He is underem-
forthright
ability
than
heck of
probably
ployed.
think
does a lot better
has the
to do a
he
He
pizza delivery guy
tips,
up
that in
and that’s
to the Court
a lot better than to be
his
high
years,
part
it
time or
If he —an
what
for two
whether
be
decide.
percent
time,
making
...
of what he
almost full
and if the
awarded
he’d be
Court
abilities,
making
way of
other
his
this
intend-
would be
what
statute is
in —
for,
delivery
Making
position
make.
four seven-
he
then
in a
people
ed
would
be
twenty-
ty-five
I
you
he could make five
where
think
would find that he would
when
delivery
go
two
at the mini-
able to
work. And if
and six seventeen even
and do
delivery
delivering
not ask-
being
pianos
mum
that’s not
it’s
work
or de-
—that’s
furniture,
livering
him to do
that’s
this chart
ing
a lot for
that.
what
certainly
ability.
shows. He
that
she
argued,
Derek’s counsel
like
did
things
are
There
other
other than deliver-
earning
in
“close to”
this
ing pizzas
taking
....
consider-
even
into
imput-
more
minimum
so no
should be
may
tips may
you
that
be
ation
low and
example:
For
ed.
buy that,
undoubtedly pocket-
that he’s
guidelines
you impute
forth
The
set
when
money
says,
more
than
it
what he
it,
they
income
decide
that I think if
appears
certainly
that he could
do a lot
you impute income at the
minimum
years
hasn’t
It’s been two
he
better.
you
expect
is all
a month
can
in
$102
job.
a
found better
support.
troubled,
The
court was
felt
but
way
impute greater earnings
no
it had
guidelines require
people
The
earning
that
Derek:
significantly
impute
in
order to
in-
impute
...
I can’t
skills
him that he
testimony
come.
no
There’s
here
he
right now.
a low skilled
doesn’t have
He’s
is earning significantly less.
very
I’m satisfied he can’t be
laborer and
proud
only pays
fact that he
$102
Unfortunately,
blindly accepted
the court
this
support.
month
That can’t be
argument:
something
proud
I’m
that he’s
of. And
already
...
making
we’re
him a 40-hour-
hopeful
something
that that’s not
that he
delivery
minimum
pizza
guy
a-week
very
longer
wants
continue
much
I
it’s a
so think
misstatement
certainly
the future. But I
no
have
basis
facts to
him
ca-
part-time
talk about
in a
higher
impute
on which to
my
pacity
understanding
it’s
when
imputed
amount to
The Court
half of
him.
that’s been
to him is
high
that amount to him while
was in
he
wage,
based on a 40-hour week minimum
graduated
high
school. And after he
from
right?
school, just
year ago,
job
got
about a
Haltingly, Misty’s
argue
counsel
oth-
tried to
working
figure
raised
Domino’s
erwise:
And,
earlier,
I
that’s
to 102.
as mentioned
doubt,
imputing
...
him the
him. Now
giving
So
benefit of the
full 40-hour week to
jobs.
choosing
part
he’s still
time at
could
two
work
He doesn’t
wage job,
to do
I’m
could be
and he has for over
elect
that.
satisfied he
75-02-04.1-07(3)(b)
making
money,
(c),
I
but
don’t have the N.D.Admin.C.
impute
available.
have the evidence
income
grid
capacity
don’t
based on
plug
sparse
front of
allow me
not available on
me that would
record.
something higher
into
him
where he’s
“An obligor
is ‘underemployed’
at.
obligor’s
income from earnings is
impute
court held “there is no basis to
significantly
prevailing
amounts
addition to the income
by persons
earned
judgment,” and
in-
the amended
refused to
similar work
qualifi
support.
crease Derek’s child
75-02-04.1-07(l)(b).
cations.” N.D.Admin.C.
underemployed,
When an
appeal, Misty
12] On
contends the trial
guidelines
authorize three
deciding
ways
court erred
Derek “is not under-
alternative
impute
willfully
income:1
when he
chooses to
*4
part-time
job
wage
at a minimum
work
Except
provided
as
in subsections 4 and
pays significantly
community
than the
less
monthly gross
earning
income based on
average
significantly
when he
make
could
capacity equal
greatest
to the
of subdivi-
than
if he
wage
more
worked full-
c,
through
gross
sions a
less actual
earn-
argues:
time.” She
ings,
imputed
must
to an obligor
be
who is
Fargo Wage
According
...
& Bene-
unemployed
underemployed.
Survey
published
fit
of 1996
Job Service
equal
a. An amount
sixty-
one hundred
presented
North Dakota
as evidence
hourly
seven times
federal minimum
the
[Misty]
trial,
average delivery
at the
wage.
working
in Fargo
driver
full-time
makes
b. An
equal
pre-
amount
six-tenths of
wage.
than minimum
average
more
vailing gross monthly earnings in the com-
wage
gross
delivery
Fargo
of a
driver
munity
persons
with similar work histo-
per
according
survey,
hour
$5.82
ry
occupational qualifications.
average
monthly salary
thus
gross
ninety percent
c. An
equal
amount
delivery person
on
per
$5.82
obligor’s greatest
average
gross
Fargo
hour
area would be
monthly
earnings,
twelve months
$1,008.80-
significantly
This is
more
beginning
thirty-six
on or after
months
actually
than what
making
[Derek] is
before
of the proceeding
commencement
Currently,
making only
this time.
ishe
before the
reliable evi-
per
gross
hour and
his
thus
provided.
dence is
he
income
works
is $823.33
if
full-time
75-02-04.1-07(3)(our empha-
N.DAdmin.C.
However, he has never worked full-
[sic].
sis).
clearly
Because
c
subdivision
does not
born,
since
time
his child was
and even at
apply, Misty
prove
had the burden to
Der-
trial,
the time of the
he claimed he was
occupational qualifications
ek’s
for more im-
full-time,
then,
trying to work
but even
puted earning capacity under subdivision b.
working
forty
hours.
In
Misty
prove
amount
had to
addition,
pizza
he works
as a
sometimes
earning
pre-
was less
six-tenths of
pizza
delivery
maker and sometimes as
vailing
persons
in the
person and
in tips
therefore makes less
with similar work
than he
would
he was
qualifications. She failed
do so.
delivery
person.
as
could working
He
be
job
full-time either at
or a
different
Misty
concedes Derek’s small earn-
job
driver,
as a delivery
but he has chosen
ings
sixty percent
were more than
of the
only
part-time.
deliver
sought. However,
prevailing wage she
she
(our emphasis). Unfortunately,
argues
judicial
two of
the trial court
had
still
discre-
ways
guidelines,
underemployed.
three alternative
tion to find Derek
For that
75-02-04.1-07(5):
Compare
equal
greater
sixty-
N.D.Admm.C.
to or
than one hundred
hourly
earning
seven times the
federal minimum
capacity may
Gross income based on
obligor
underemployed.
not
obligor
if the
that the
and is not
shows
average monthly gross earnings
Still,
court’s conclusion
[¶
from the
purpose, Misty
offered evidence
impute
there
no basis
pub-
“that
Survey
Fargo Wage and Benefit
previously
imputed”
to the income
addition
North Dakota.
Job
lished
Service
clearly
As
erroneous.
He
was mistaken
evidence, Misty argued
From this
(N.D.1993)
Heley,
ley
N.W.2d
to earn the
Derek should be able
guide
that the
explained: “A mere recitation
wage of a “merchandise deliverer”
$5.82
arriving at the
lines have been considered in
hour,
average high
per
or even the
support obligation
is insuf
a child
In
per
category.
hour for
compliance
guide
with the
ficient
show
affidavit,
Misty’s position
Derek contested
Clearly,
lines.”
Derek has not been
merchandise
that he
earn
as a
could
guidelines
the minimum that
dictate.
insisting
pizza delivery
delivery person by
guidelines
“monthly
require
18] The
wages.
can
make minimum
person
equal
earning capacity
gross income based
deliv-
rates for merchandise
While
c,
through
of subdivisions a
earn-
ery
significantly
more than Derek’s
actual
... be
sixty percent of
ings,
either of
underemployed.”
who
earn-
urged by Misty is less than his current
75-02-04.1~07(3)(our empha-
N.D.Admin.C.
'ings.
sis).2
only part-
has been
years.
wage job
time at minimum
for two
recognized publications by
16] We have
*5
compelled finding
alone
a
That circumstance
Dakota are relevant evi
Job Service North
and
underemployment
of
a correct calcula-
judicially
noticed
show
dence
can be
tion of the “baseline” minimum to be
persons
of
prevailing wages in a
obligor
like Derek. As
able-bodied
occupational
with similar work histories and
Schleicher,
Schleicher v.
769
Brandenburger,
qualifications. Kjos v.
(N.D.1996)
finding
explained:
proper
“A
of
(N.D.1996); Nelson v. Nel
N.W.2d
65-66
income
net
is essential
a determination of
son,
(N.D.1996).
741, 748
But
N.W.2d
correct
the
amount
under
recognizes
review
the trial
our standard of
Further,
guidelines.”
the
“Section 75-02-
position weigh
in a
court is
far better
the
04.1-02(10), N.D.A.C., requires that a child
credibility of
evidence
the
wit
and
order include
statement
Misty presented
747.
nesses. Nelson at
no
obligor’s
net in-
net income
‘how that
pizza delivery per
prove
evidence
here
”
come was determined.’
Id.
qualifications
son has
same
pre
delivery person.
aas merchandise
She
imputation
“baseline” minimum
[¶ 19] The
greater
sented no evidence
show a
amount
sixty-
equal
“[a]n
is
one hundred
imputed,
income
on Der
hourly
could be
based
seven times the
federal minimum
education,
experience,
75-02-04.1-07(3)(a).
history,
ek’s work
wage.” N.D.Admin.C.
Thus,
beyond
wages.
we affirm
young
minimum
parent
certainly
and ablebodied
impute
part-
trial
refusal to
more in
underemployed
working
court’s
when he is still
wages
years
come to
under
75-02-
time at minimum
after his
two
N.D.Admin.C.
04.1-07(3)(b).
bom,
grad-
year
child was
more than
after
agency history
regulation
help-
imputation
obligor
this
allows
2. The
for
It
cases where the
significant
ful:
ahas
decline. In almost all
income
cases,
the heart
the section.
will be between subdivision a
Subsection
It'
the choice
requires imputation
equal
earning capacity
alternatives,
based on
or c. Subdivision b will be used in those rare
of three
potentially
cases which merit the
considerable
monthly
earnings.
actual
Subdivision a is the
discovery
expert
investment in
witness
equivalent
income for
full-time
feder-
required. We
fees
assume most such cases
baseline,
wage.
al
This
minimum
will form
by private attorneys.
would be handled
may
by judicial
proved
and it
notice
(our emphasis). Summary of Comments Re-
hourly
wage.
minimum
Subdivision b
federal
Regard
Proposed
ceived in
To
New N.D.Ad-
presents
proof
all the
difficulties
would
75-02-04.1,
Support
min.C. Ch.
lines,
Child
Guide-
(which
ordinarily
expert
testimony
require
transmitted to Executive Director North
may be
Job
available from
local
Service
by
Department of
Dakota
Human Resources
office).
c
Subdivision
calculations
Blaine Nordwall on December
1990.
solely upon
obligor’s
wage history.
actual
school,
high
attending
wage
not
mum
uating
required
guidelines
from
imputation.
“baseline”
obligated,
or trade school. Derek is
college
least,
very
from full-
at the
[¶ 22] Derek also failed to submit his 1996
employment at the current minimum
time
complete
tax return or
information
wage.
hourly
earnings. See N.D.Admin.C. 75-02-04.1-02
subsection(7) (“Income
must be document-
applicable
minimum
returns,
through
ed
of tax
use
current
hourly wage
Misty
when
moved to increase wage statements,
other
information suffi-
recently
Derek’s
was a
enacted
ciently
fully
apprise the court of
all
increased
effective in
1996. 29
October
income.”);
subsection(lO) (“Each
and at
§ 206.
Although
U.S.C.A.
increase of
support order must include a
statement
per
wage by
the minimum
hour
cents
net
income of the
used to deter-
specifically
called to the
court’s at-
support obligation,
mine the child
how
tention, per
current
hour was men-
determined.”).
net
income was
See also
tioned,
applicable
Helbling
it
Helbling,
and was the
and correct
(N.D.1995).
Also,
incomplete
documenta-
law.3
Derek’s less than full-time em-
of his
tion
income and the trial
record,
court’s mis-
ployment was evident in this
and the
(“there
finding
taken
is no
impute
basis to
fragmen-
information he furnished was
income in
addition to
incomplete,
tary,
unsatisfactory.
24,1996”)
judgment
July
the amended
dated
single wage
offered
this plain
are inconsistent with
record and a
period
second two-week
in June.4
pf
stub
application
correct
the law.
obviously
The stub
showed
fulltime
[¶ 23] The minimum
went from $4.25
employment
year-to-date $4,125.42
for the
—
$4.75 October
See 29 U.S.C.A.
full-time,
sixty
one hundred
—when
§ 206.
employment
At the
per
seven hours
month at the
hour-
required
guidelines,
of 167 hours
*6
months,
ly
of
for six
would be
$4.75
higher
hourly wage plainly
minimum
calcu-
$4,760. Thus,
earning
Derek was
$635
support.
an
lates
increased
The minimum
imputed
mandated
the
“baseline”
earn- wage
statutory;
regulation
is
the
fixes 167
ings
the first
six months of 1997. He
per
imputed
hours
month for
full-time em-
thus earned
least
ployment;
$105
related tax
the
rates and
employment
records,5
public
the full-time
at the correct mini-
judicially
tables are
noticea-
apply
right
particular legal
3.We should
the
of law
not
rule
even if it
limited to the
ad-
theories
presented
by
properly
parties,
vanced
but
the
was not
the trial court
the
rather retains
Holecek,
independent power
identify
apply the
to this court. See State v.
545 N.W.2d
proper
law.”).
800,
governing
construction of
(N.D.1996)(quoting
LePire Workmen's
Bureau,
355,
Compensation
4. The stub
worked
shows he
76.31 hours for
(N.D.1961))("Questions
before
not raised
the tri-
period,
pay
$248.65.
two week
his net
But,
appeal.
al
will not he
court
considered
$4.75,
73.66 hours
at the rate of
2.65
were
but
pertinent
‘where
statute has been over-
$7.13,
$4.75.
hours
were
which is 1.5 of
This
court,
resulting
looked
both counsel and the
forty
shows that Derek worked 2.65 hours over
plain
public
in
error in a
is of
matter that
con-
week,
during
nearly
nine
one
hours less than
cern,
court
this
will consider the error even
forty during
entry
There is
second.
also an
though
brought
it is not
attention
to our
either
earned,
shown,
$38.75
for
implies
no
with
hours
”) (citation omitted);
parties.’
of
State v. Lar-
tips
any wage
he received
not included in
sen,
178,
(N.D.1994)(quoting
support.
calculation for child
510, 512,
Holloway,
Elder v.
510 U.S.
114 S.Ct.
1021,
1019,
(1994))(“We
courts no parent. dial majority addresses is- Because court to re- Because the trial failed appeal, sues below nor on not raised proof income from obli- quire proper doing so importantly because correctly apply the gor, and also failed to majority radically the role of trial alters imputation of guideline requiring the “base- cases, courts in child dissent. employ- from full-time line” ment, proper we remand for reverse and Misty Ullman moved for an increase development a cor- obligation, Berg’s ar- capacity application earning rect of the law guing Berg underemployed under N.D. underemployed obligor. to be to an Admin. Code 75-02-04.1-07 should larger have to him. Ull- MAKING, JJ., [¶ 26] SANDSTROM Berg capable man asserted concur. hour, per deliv- WALLE, Justice, Chief concur- VANDE earns, ery according person Fargo ring part. Wage Survey of 1996. and Benefit Ullman *7 attempted Berg also has not to seek asserted I do not it is unreasonable to [¶ believe 27] employment. apply gainful a trial current more or require full-time $4,150.00 deduction) (standard 201(c) ("A judi- may 6. See N.D.R.Ev. court take 320.60 less = notice, (f) not”) $2,650.00 $3,520.60 requested or (personal exemption) cial whether tax- ("Judicial may stage notice be taken of Federal income tax from tax table able income. proceeding”). $3,520.60 $529.00. on is State income tax is .14 = x $529.00 $74.06. Medicare FICA and de- = = monthly gross x x $4.75 $793.25 7. 12 = ($10,320.60 x are .0765 ductions 7.65% $4,150.00 $9,519.00 (standard yearly gross, less $10,320.60 $789.53). $529.00—$74.06— — deduction) $2,650.00 (personal exemption) = $8,928.01 yearly $789.53 net income. = $2,719.00 taxable income. Federal income = $8,928.01/12 monthly $744.00 net income that $2,719.00 $407.00. tax tax from table on is monthly support $133.00. tables a ever, child How- = $407.00 x $56.98. State income .14 tax is only tips adding $38.75 recorded on deductions FICA Medicare are 7.65% stub, monthly paycheck his June net = $728.20). $9,519.00— ($9,519.00 x .0765 $750.00 = exceed that income would tables a $8,326.82 yearly $407.00 $56.98—$728.20 — support = monthly $8,326.82/12 $168.00. child monthly $693.91 net income. net court’s here was entered on monthly support The trial tables a child August See $133.00. 1997. N.D.Admin.C. 75-02-04.1- 02(8) (“Jf Moreover, materially affect circumstances that the state and federal minimum obligation very likely support change September $5.15 for Derek on increased 46-02-07-02.1; future, may given 1997. See N.D.Admin.C. near consideration = circumstances.”). § $860.05 x likely U.S.C.A. future = $10,320.60 $10,- gross yearly gross. x 12 motion, Likewise, argu- N.W.2d 281. Berg resisted Ullman’s determination re currently paying support ing garding he is underemployment finding is also a employment on Kjos Brandenburger, based fact. per
wage, (N.D.1996). close to month an amount the $614 A finding clearly 63-64 of fact is work earning. Berg’s net income is histo- erroneous if it is induced errone ry only employment has been shows his law, view ous of the there is no evidence to Domino’s; working at he has no other skills. it, even though or if is there some Berg delivering pizzas compa- is not argued it, reviewing evidence to court is delivering ap- rable to such as merchandise left with a and firm definite conviction a furniture, therefore, pliances and he is mistake has made. Id. been delivery able to earn before [T37] issue the trial court and persons Fargo Wage as in the 1996 reflected appeal raised on whether Berg was should be Survey. and Benefit required pay additional child The trial court denied Ullman’s mo- 33] underemployment. on his based The North tion, had no on which stating it basis § Dakota Administrative Code 75-02-04.1-07 impute appealed. income. additional Ullman authorizes income to be to an under appeal, argued [¶ 34] On Ullman support obligor on clearly determining court was erroneous in obligor’s capacity rather than his Berg underemployed is not under N.D. Ad- Matuska, actual earned income. Surerus v. parties § min. Code 75-02-04.1-07. Both ar- Nelson, (N.D.1996); gued extensively Berg whether was under- N.W.2d at 744. However, employed. the trial court did not definition, By obligor is 38] “[a]n ‘under- Berg underemployed. find was not The trial employed’ obligor’s gross if the income from simply court “on denied the motion significantly prevailing grounds impute there is no basis by persons amounts earned in the imputed by income in addition the income with similar work July 24, judgment the amended dated § qualifications.” N.D. Admin. Code 75- July 1996....” A review the referee’s 02-04.1-07(l)(b). When an obligor found Berg already 1996 findings shows con- underemployed, to be N.D. Admin. Code underemployed. The sidered to be referee 75-02-04.1-07(3), outlines court’s the trial time, Berg only working part found options imputing income: disability suffering precluding was not from a Except provided “3. as in subsections 4 him from full The trial time. 5, monthly gross income based therefore, Berg pay ordered earning capacity equal by approv- based on full-time minimum c, through subdivisions a less actual findings. findings the referee’s These obligor must be to an appealed. were not unemployed underemployed. who is impute [¶ A trial court is authorized to equal a. An one hundred obligor only income to an if the *8 hourly sixty-seven times the unemployed underemployed. N.D. or Ad wage. 75-02-04.1-07(3); § min. Code see also Nel (N.D. Nelson, 741, son v. 547 N.W.2d 746-47 An equal b. amount to six-tenths of 1996) adequate (stating evidence must be gross monthly earnings in prevailing presented an obligor to find is underem community persons of with simi- ployed, imputed). or income cannot be Be history lar work Berg cause the trial court income to qualifications. 1996, it is the trial clear court considered equal ninety percent c. An amount underemployed. him obligor’s greatest average of the any A trial court’s determinations of findings beginning are of fact and will be twelve months on or after they clearly thirty-six
affirmed unless are erroneous. months before commence- ¶ E.H., 101, 3, In proceeding Interest 1997 ND 564 ment of the before of 226
court, disapproval this shown its for re for which reliable evidence is Court has provided.” trying cases in the N.D. Admin. Code when reasonable evidence 75-02-04.1-07(3). § supports findings. the trial record court’s Robert, Co., Inv. ND et al. v. 1998 already required Because trial court had Aircraft ¶ 138, 62, 10; Reimche, ND Reimche v. 1997 a, Berg to subdivision pay the under ¶ 13, 790; City Thompson 566 N.W.2d v. amount al- and Ullman did contest the of ¶ 172, 12, City, ND 1997 568 N.W.2d ready imputed, a was not at is- subdivision Watford Nelson, 736; Matter N.W.2d Estate 553 clearly sue. subdivision e does not Because of of 771, (N.D.1996); Buzick, 774 Buzick 542 v. apply, show Ullman had burden to she 756, (N.D.1996); Mahoney v. more N.W.2d 758 was entitled to under Therefore, 189, (N.D.1995); Mahoney, 193 b. Ullman was re- 538 N.W.2d subdivision imput- Schmidkunz, currently quired prove the amount Schmidkunz v. 529 N.W.2d (N.D.1995). 857, § N.D. Code 75- As we in Mor Berg ed under Admin. 859 stated (N.D. 02-04.1-07(3)(a) Morales, 322, was less than six-tenths of ales v. 402 N.W.2d 324 1987), prevailing of “it no is the of this longer function persons similar work and occu- record for court scour the issues pational qualifications, under N.D. Admin. might could lead to a result we believe to be 75-02-04.1-07(3)(b). § Code desirable, urge we must more resist retry parties.” the case for “The majority goes through the mo- [¶ 39] The as to the trial existence doubt whether prove showing tions of how Ullman failed to court or is the trier of this Court ultimate she was entitled to under think, is, non-jury fact issues in cases we 75-02-04.1-07(3)(b), § N.D. Admin. Code orderly detrimental to the administration point. the trial court on this affirms impairs justice, litigants the confidence of court, only This was issue trial before the public and the in the decisions of the district and the raised this Court issue before courts, appeals multiplies the number of appeal. Affirming on con- this issue should Buzick, 542 such cases.” at 758 N.W.2d Unfortunately, majority clude the case. omitted). (citations Likewise, has this Court stop majority does not The then there. re- disapproved ap considering also issues on verses remands the case to the trial peal not before the trial and has raised court based on calculation generally not entertained such issues. Mat already imputed ques- amount never —an ¶ Peterson, 19, 48, ter Estate 1997 ND below, never questioned ap- tioned on 618; Heling, 561 N.W.2d RLI Ins. Co. 520 v. peal. majority, length, expounds 849, (N.D.1994); Tweed, N.W.2d v. 854 State time, Berg’s failure to work full and his (N.D.1992); 417-18 Chris failure school. facts to attend Those Christensen, v. tensen N.W.2d clearly Berg irrelevant. The record shows (N.D.1986); Bard, v. Bard earning less min- (N.D.1986). Winkowitsch, In Hansen v. wage, yet paying sup- imum he was a child (N.D.1990), N.W.2d held we port based, on obligation full-time minimum 463. not adequately “[Tissues contentions devel under N.D. Admin. Code 75-02- oped presented properly at trial are not 04.1~07(3)(a). before this Court.” majority 40] The has done a masterful case, so, job re-lawyering doing and in Mahoney much [¶ 42] This case is like impartial faulted a fair Mahoney, In 1997 ND N.W.2d 206. for declining to choose sides. The burden Mahoney, court claimed the trial majority places now on trial courts radi- clearly adopting the special erred in master’s *9 cally judges role of alters the trial ¶ 10, computation net income. at 567 Id. cases, adjudi- impartial from fair and special 206. N.W.2d The claimed the cators, to for obligees. advocates by using the master erred not tax tables and Re-lawyering appropriate is to not the standard deductions determine the obli- appellate contrary role of an gor’s court. It is to income to calculate his child ¶¶ 10-11, 1, our own precedents. obligation. On n. 567 countless occasions Id.
227
quested by
party
to
206. We refused
entertain
and the trial
is
N.W.2d
court
of net income because
supplied
necessary
issue of miscalculation
information. As
¶ 15,
not raised
201,
that issue was
below. Id.
N.D.R.Evid., Explanatory
noted Rule
case,
present
206.
In the
nei-
567 N.W.2d
Note, judicial notice should not
as a
be used
party
ther
raised the issue of a miscalcula-
appeal
device on
to correct
com-
an almost
tion;
majority. As we
it was created
plete
present adequate
failure to
to
evidence
Mahoney, “[generally,
the failure
stated
the trial court. That is precisely what the
timely objections
report
to file
to the
and majority
here.
has done
special
of a
recommendation
master waives
study
proposed changes
recent
appeal
right
the recommended find-
_
judicial
to rules on
notice in the federal
ings
litigants
responsibili-
have a
[T]he
judicial
courts addresses
notice of
Paul
law.
process
making
ty
their
assist
Rice,
Project:
R.
The Evidence
Proposed
timely objections
report....”
to the
Id. at
Evidence,
¶
Revisions to the Federal
12,
Rules
206.
address
We do not
(1997).
171 F.R.D.
for the
time on
330
“Judicial
issues or contentions
first
notice
appeal;
gives
party
do so
shift
parties
a chance
law does not
from the
to the
have
the first
redo what should
been done in
duty
develop
court the
the case
ferret
¶ 18,
place.
“Requir-
567
Id. at
N.W.2d 206.
application
out the
of law.
It remains the
ing
party
present
to first
to the
an issue
duty
parties
bring
of the
to the court’s
court,
precondition
raising
trial
as a
it on
rule of
attention the
law
governing
oppor-
appeal, gives
meaningful
that court a
ease....
‘A trial court cannot be convicted
decision,
tunity
to make
correct
contributes
something
of error
brought
for
to its
”
process,
develops
input
valuable
410, Commentary, (quot
attention.’
Id. at
the record for effective review of the deci-
Irriga
Ins. v.
Great American
Glenwood
¶ 13,
In
sion.” Id. at
of ten alleged in-
Berg’s provide failure to rehable simply
formation about income was