Bloom v. FyllesvoldBloom v. Fyllesvold
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- Before:
- Levine
Dwight Fyllesvold appeals from a district court order modifying Sandra Bloom’s child support obligation. We affirm.
Dwight and Sandra were divorced in November 1982. Pursuant to a stipulation, Dwight was awarded custody of their three minor children and Sandra was ordered to pay monthly child support of $225. In April 1984 the court temporarily reduced Sandra’s monthly support obligation to $100 with the remaining $125 continuing to *329 accrue as an arrearage. Thereafter, Sandra became delinquent on her support payments and on April 27, 1987 the clerk of court issued income withholding orders to Sandra’s two employers. 1
On May 2, 1987 Sandra 2 sent a letter to the clerk of court requesting a “hearing to contest the income withholding order” and to show that the amount withheld would be a hardship for her. She was referred to Referee Bill Blore for the procedures to be followed. The record does not reflect whether she contacted Blore but on May 20, 1987 she wrote a letter to the district court judge requesting a hearing to seek a permanent reduction in child support and to show that taking fifty per cent of her wages would be a hardship. Dwight admits that he received a certified copy of that letter.
On May 26, 1987 the judge informed Sandra that, in order to obtain a permanent reduction in child support, she would have to obtain a hearing date and serve a motion and notice of motion upon Dwight. After obtaining a hearing date for June 15, 1987, Sandra sent another letter to the district court on June 3, 1987, stating that the hearing was set for June 15th and that she was “requesting that the amount [of child support] be reduced permanently to $100.00 per month” and that taking fifty per cent of her wages would be a hardship for her. Dwight admits that he received a certified copy of that letter.
At the hearing the court announced that Sandra’s motion sought “a reduction in child support occasioned by a change in financial circumstances since the entry of the judgment.” The court found that Sandra’s current earnings were two-thirds less than when she stipulated to pay $225 a month and reduced her child support obligation to $75 per month.
Dwight contends that the trial court failed to comply with.
“14-09-09.14. Hearing upon obligor’s request.
“1. If the obligor files a request for a hearing within ten days of the date of the notice made pursuant to section *330 14-09-09.13, the court shall hold a hearing within ten working days after the date of the request. If at the hearing the obligor establishes that there has been a mistake in the identity of the obligor, the court may order that no income withholding order issue. If at the hearing the obligor establishes that there is an overstatement in the amount of support stated to be owed by the obligor, the court may amend the amount to be withheld. In the absence of a finding of a mistake of fact, the court shall order that the income withholding order issue. Payment of overdue support after issuance of notice under section 14-09-09.13 may not be the basis for an order that no income withholding order issue.
“2. An obligor is not precluded, by subsection 1, from seeking appropriate relief from a judgment or order affecting a child support obligation nor is the court precluded from granting such relief. An obligor’s request for such relief, whether made by motion under Rule 60(b) of the North Dakota Rules of Civil Procedure or otherwise, may not be considered during the hearing described in subsection 1.”
In construing that provision, we first examine the statutory language as a whole to determine the intent of the Legislature because that intent is presumed clear from the face of the statute. E.g., County of Stutsman v. State Historical Society of North Dakota, 371 N.W.2d 321 (N.D.1985).
The hearing in this case was not held within the ten-day requirement of
An interrelated issue involves Dwight’s argument that Sandra did not give him proper notice of the scope of the June 15th hearing.
In Vande Hoven v. Vande Hoven, 399 N.W.2d 865 (N.D.1987), we recognized *331 that the primary purpose of procedural rules governing motions is to inform the adversary of the nature of the claim being asserted and the relief demanded. A notice of motion and motion are sufficient if the motion and attached papers and records are sufficiently precise to advise both the adversary and the court of the question involved. Eisenbarth v. Eisenbarth, 91 N.W.2d 186 (N.D.1958). In Eisenbarth, supra, 91 N.W.2d at 188, we concluded that a notice of motion was sufficient for the court to modify child support where the notice sought “an order modifying the judgment by making the defendant pay the second mortgage and ‘for such other relief as to the court may seem just and equitable.’ ”
While Sandra’s compliance with motion practice was at best approximate, we believe that her June 3rd letter was sufficiently precise and complete to advise Dwight and the trial court of the nature of her claim and the relief requested. Vande Hoven, supra; Eisenbarth, supra. Dwight appeared at the hearing with counsel and did not object to either notice or the trial court’s characterization of the nature of the hearing. Nor did Dwight ask for a continuance on the merits of the permanent reduction in child support. Under these circumstances, we conclude that Dwight received adequate notice of the scope of the June 15th hearing.
Dwight also contends that the trial court erred in permanently reducing Sandra’s child support obligation from $225 to $75 per month.
A trial court may modify an award of child support when a material change in financial circumstances is demonstrated.
E.g. Burrell v. Burrell,
359 N.W.2d 381 (N.D.1985). A change in financial circumstances by itself is not sufficient to modify child support without further inquiry about the cause of the change, including whether the change was permanent or temporary and whether it was due to a voluntary act or neglect on the part of the obligor.
Cook v. Cook,
364 N.W.2d 74 (N.D.1985);
Burrell v. Burrell, supra; Hoster v. Hoster,
216 N.W.2d 698 (N.D.1974). A trial court’s determination on modification of child support is subject to the “clearly erroneous” standard of
The trial court found that Sandra was currently earning two-thirds less than when the original judgment was entered and reduced her child support obligation from $225 per month to $75 per month. When the divorce was granted Sandra was earning about $15,000 per year managing a pizza parlor. She testified that that job required her to work about seventy hours per week while she was under a doctor’s care for “chemical depression” and that she quit because of the “pressure” and her belief that she was not doing the job properly. She further testified that she had subsequently applied for several comparable jobs but was currently working as a waitress in Wisconsin for about $5,000 a year because she was unable to obtain employment at her previous salary. Sandra’s reduction in income is thus neither voluntary nor temporary. Compare Burrell v. Burrell, supra. Therefore, we are not left with a definite and firm conviction that the trial court made a mistake in modifying Sandra’s support obligation. We conclude that the trial court’s findings are not clearly erroneous.
Dwight also contends that the trial court ordered that Sandra pay nothing toward her arrearages and that such an order abrogates the intent of the income withholding provisions.
The amount of income withheld by an income payor may not exceed fifty percent of the obligor’s disposable income. N.D.C. C. § 14-09-09.16(3).
“The total amount of money that will be withheld . . . is the sum of both of the following:
*332 “a. The obligor’s current monthly support obligation.
“b. The amount the obligor is ordered to pay toward any outstanding arrear-age, or if no order exists, then an amount equal to twenty percent of the obligor’s current support obligation for application towards any arrearage subject to the limitations of section 14-09-09.16.”
In this case, the trial court stated in its written order:
“The Court after having heard the testimony does reduce the obligation of child support to Seventy-five Dollars ($75.00) per month. The Plaintiff is making two-thirds less money now than at the time she obligated herself to make the payment of Two Hundred and twenty-five Dollars ($225.00).
“The Court determines that the Motion brought by the Plaintiff was one seeking a permanent reduction in child support and one not for relief from an income withholding order, however implicit in this permanent reduction of child support payment is that any wage withholding order shall be no greater than twenty percent (20%) of the Plaintiff’s child support obligation and the sum to be withheld will be Fifteen Dollars ($15.00) per month.”
We do not believe that this language, read in its entirety, orders that nothing be withheld for arrearages. Rather, it indicates that the trial court first permanently reduced Sandra’s current support obligation to $75 per month and then acknowledged the statutory formula for computing the amount for arrearages and incorporated into its order the amount determinable from that formula. According to the trial court’s written order and the formula in
The district court order is affirmed.
ERICKSTAD, C.J., and VANDE WALLE, GIERKE and MESCHKE, JJ., concur.
Notes
. Each income withholding order required the respective employer to withhold $270 from Sandra’s paycheck with the caveat that the amount that each employer withheld could not exceed 50% of her disposable income.
. Sandra appeared pro se throughout the instant proceeding.
.
. Because of our resolution of this issue, we do not address whether an obligee is entitled to notice as a condition for the obligor to contest the issuance of an income withholding order.
. The trial court made the following oral statements:
“I am going to order that $75 a month is what she is obligated to pay and there will be no order toward arrearages at this time. I just feel that would be counterproductive, if I were to order anything on top of that $75.”
. Because of our resolution of this issue, we do not decide whether a trial court can order that an obligor pay nothing toward arrearages.