Ruth Ann GARBE, Plаintiff and Appellee, v. Robert Keith GARBE, Defendant and Appellant.
Civ. No. 900336.
Supreme Court of North Dakota.
April 2, 1991.
380 N.W.2d at 519. We do not believe the Minnesota Court of Appeals intended to expand the waiver of the statute of limitations to an inconsistent defense asserted before trial. This is particularly true in light of Bielenberg, cited by Baron and the Minnesota Court of Appeals in Christenson, which is clearly limited to the proposition that inconsistent defenses cannot be asserted at the same time. 204 N.W. at 545. Accord Phillips-Van Heusen, 289 N.W.2d 216. Upon reviewing Nicholson, cited by Baron, we conclude that it offers no support for his position. 400 N.W.2d at 164. Instead, Nicholson allowed the assertion of the statute of limitations defense in a paternity action after the party asserting the defense, who was opposed to the establishment of paternity, had previously admitted the existence of patеrnity. Id.
Notwithstanding the meaning or portent of the Minnesota cases, we decline to apply the rule Baron urges upon us, especially in light of our own past case law.
We have previously stated that “it is proper for a party to assert that there are no genuine issues of material fact for purposes of that party‘s motion only.” Batla v. North Dakota State University, 370 N.W.2d 554, 557 (N.D.1985) (citing Biby v. Union National Bank of Minot, 162 N.W.2d 370, 373 (N.D.1968)). In Batla, we concluded that a party was allowed to raise issues at trial even though, in the party‘s motion for summary judgment, the party had claimed that no issues of material fact existed. 370 N.W.2d at 557. We do not believe the defendants should have been precluded from asserting a summary judgment motion based upon discovery of facts which would reasonably lead to discovery of an asbestos created injury merely because they are also preparing for the contingency of arguing and proving the nonexistence of the injury should their motion fail.
This assertion is therefore without merit.
As the majority of the members of this Court believe the remaining issues raised by Baron on this appeal are not likely to arise at trial on remand of this case, and believe the determination of those issues at this time would be obiter dicta, we will not address those issues in this opinion.
IV. CONCLUSION
For the reasons stated in this opinion, we reverse and remand for jury trial.
GIERKE, LEVINE and MESCHKE, JJ., concur.
VANDE WALLE, J., concurs in the result.
Gregory L. Lange for Richardson & Lange, Hazen, for plaintiff and appellee.
VANDE WALLE, Justice.
Robert Garbe appealed from an order and judgment entered in district court for Ward County amending a divorce judgment. We reverse the amended judgment and remand.
Robert and Ruth Garbe were divorced by a judgment entered March 17, 1987. Prior to entry of judgment, the parties stipulated to the terms of the custody and support of their minor child, Cassandra, as well as to visitation rights and to the distribution of the marital estate. The stipulation which was incorporated into the judgment provided that Ruth have custody of Cassandra. Robert was to pay $250 per month in child support until Cassandra reached the age of 18 unless Ruth remarried, in which case $50 of that amount was to be placed into an educational trust fund. Ruth subsequently remarried and the trust fund was established. Each year the parties were to alternate income tax deductions for Cassandra. Robert was required to maintain medical insurance for Cassandra, who had cerebral palsy, and was required to pay any uncovered costs associated with her physical therapy.
In April of 1990, Ruth brought a motion to modify several provisions of the divorce judgment. Following a hearing on the motion, the district court amended the original divorce judgment by an order dated July 12, 1990. Child support was increased to $500 per month to continue until Cаssandra reaches age 19 or graduates from high school, whichever occurs first. Ruth‘s
Robert has raised a number of issues challenging the trial court‘s modifications. The dispositive issue raised is whether the trial court erred in failing to mаke specific findings of a material change of circumstances warranting the modifications. We hold that the trial court did so err.
We have stated many times that courts which have the power to award child support have the power to modify the amount of support and the method by which it is paid upon a showing that the circumstances of the parties hаve materially changed, e.g., Gabel v. Gabel, 434 N.W.2d 722 (N.D.1989). Recent developments in this area of the law have not made unnecessary the need to find a material change of circumstances.
In 1989 our Legislature directed the department of human services to establish child support guidelines “to assist courts in determining the amount that a parent should be expected to cоntribute toward the support of the child....” 1989 N.D. Laws ch. 148, § 4 (codified at
The same 1989 Act also provided for the periodic review of child support orders. See 1989 N.D. Laws ch. 148, §§ 16, 17. A temporary new section, effective October 1, 1990, applied only to child support orders being enforced by child support agencies. See
Ruth asserts that the extension of support payments past the age of majority must be affirmed because section
“(1) In the absence of a written agreement to the contrary entered into after July 1, 1989, a judgment or order requiring the payment of child support until the child attains majority is deemed to be modified to continue as to the child until the end of the month during which the child is graduated from high school or attains the age of nineteen years, whichever occurs first, if:
а. The child is enrolled and attending high school and is eighteen years of age prior to the date the child is expected to be graduated; and
b. The child resides with the person to whom the duty of support is owed.”
Section
With regard to the amount of the payments, the trial court determined that it was “appropriate to use the guidelines as a standard” to re-examine the question of child support and that “utilizing the guidelines will tend to equalize the percentage of support contribution of Ruth and Robert.” While we have never held that the trial court may not follоw the suggested guidelines if the child support awarded is fair and reasonable and supported by the evidence, see Younger, supra (Levine, J., concurring specially), the trial court must find a material change of circumstances before it can apply the guidelines. Only after the trial court determines that a material change of circumstances has occurred, without reference to the guidelines, can it proceed to modify the child support. See Younger, supra (VandeWalle, J., concurring specially). The disparity between the obligor‘s current payments and the payments suggested by the guidelines cannot serve as a basis for finding a change in circumstances. Younger, supra.
In order to make a determination of whether there has been a mаterial
“In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment....”
The trial court‘s findings of fact will not be set aside on appeal unless they are clearly erroneous. Gabel, supra.
The purpose for requiring specific findings of fact under Rule 52(a) is to “enable the appellate court to understand the factual determination made by the trial court and the basis for its conclusions of law and judgment entered thereon.” All Seasons Water Users v. Northern Improvement Co., 399 N.W.2d 278 (N.D.1987). Findings that enable this court to understand the rationale behind the trial court‘s decision are all that is required. Healy v. Healy, 397 N.W.2d 71 (N.D.1986).
While not labeled as such, the trial court in its order made the following findings relevant to a material change of circumstances:
“There has been an increase in the cost of living since 1987 and utilizing the guidelines will be more reflective of the cost of raising a child in 1990.
“As children grow older, more money is required for their needs and support.
“Cassandra has cerebral palsy and will require more medical attention than a child that has no health problems. While the parents knew of Cassandra‘s affliction, attendant uninsured costs of her medical treatment are being more precisely identified.”
These findings are not sufficient for us to understand the rationale behind the trial court‘s decision. The trial court has made no specific finding of a material change of circumstance which would warrant a modification of the child support. While the general findings of the trial court may indicate that certain cirсumstances of the parties have changed, the extent of that change is not apparent from the findings. Not every cost of living increase, nor a birthday of a child constitutes a material change of circumstances which would warrant a modification of child support. These are occurrences which the parties presumably anticipated at the time of their stipulation. An unanticipated change in Cassandra‘s physical condition, or the treatment therefor, may constitute a material change of circumstance, see Schaff v. Schaff, 449 N.W.2d 570 (N.D.1989), but such change has not been identified in the findings. While we have previously held that a material change of circumstances may be implied from certain nonspecifiс findings of fact, see Guthmiller v. Guthmiller, 448 N.W.2d 643 (N.D.1989), we have never affirmed a child support modification order when we could not discover whether or not the trial court‘s determination was clearly erroneous due to a failure to comply with Rule 52(a). See Skoglund v. Skoglund, 333 N.W.2d 795 (N.D.1983).
Accordingly, we reverse the amended judgment and remand for a preparation of more specific findings. The trial court may conduct further proceedings on its own motion or at the request of either party if additional evidence is deemed necessary to prepare the findings.
ERICKSTAD, C.J., and GIERKE, J., concur.
LEVINE, Justice, dissenting.
In Schaff v. Schaff, 449 N.W.2d 570 (N.D.1990), we affirmed the trial court‘s finding of material change in circumstances partly upon a specific finding that Ms. Schaff‘s progressive illness was more debilitating than previously anticipated or pеrceived. We should likewise affirm the trial court‘s similar finding in this case.
It is true that the trial court did not write words to the effect that “I find as a material change of circumstances the following.” But it did write what I interpret to be a
I agree that, sometimes, when a clear expression of findings on an issue is missing, we must reverse. E.g., Wright v. Wright, 463 N.W.2d 654, 656 (N.D.1990) (Levine, J., concurring). I also would agree that a reversal is justified when the omission of a specific finding in conjunction with other express findings or statements by the trial court raises doubt about whether the trial court properly applied thе law. E.g., Anderson v. Anderson, 448 N.W.2d 181 (N.D.1989). In this case, however, it is clear to me that the trial court implicitly found a material change of circumstances before it increased the amount of support and, therefore, properly applied the law.
While I agree with the majority that the guidelines do not apply to this case as anything more than a reasonable benchmark, the guidelines under our new law are now part of the child support landscape. Whether or not the legislature has eliminated the judicial prerequisite of material change in circumstances in order to comply with the guidelines, this court should lead the way. It would be unseemly to deprive from the guidelines’ munificence (I use the term advisedly because everything is relative) the very class they were intended to protect—children of divorce. It would be even more unseemly to perpetuate our requirement of a material change in circumstances without a concomitant holding that a deviation from the guidelines is per se a material change of circumstances.
Because I would hold that the trial court madе sufficient findings on material change of circumstance to enable an appellate court to review those findings, I would affirm. I, therefore, respectfully dissent.
MESCHKE, J., concurs.