*1 held, it could have been held at had to be location for Ned Nastrom.
more convenient 26(c). R. Civ. P. See also 8 Charles
See N.D. ah, Wright, et Federal Practice
Alan (1994) (discussing court § 2039
Procedure to consider whether convenience
discretion questions expense dictate that written
used). Considering all-or-nothing choice presented to the district
Sharon Nastrom objected after Ned Nastrom be- even cost, of his health and the financial
cause the court did not abuse its discre-
conclude entering protective order. Because the district court did not pro- its when it entered the
abuse discretion order, it did not abuse its discretion
tective 60(b) it denied Sharon Nastrom’s Rule Nastrom failed to show mis-
motion. Sharon inadvertence,
take, newly neglect, excusable evidence, fraud or other rea-
discovered required justifying relief as under Rule
son
60(b), N.D. R. P. Civ.
Ill affirm. MESCHKE, SANDSTROM, MARING, JJ., concur.
NEUMAJSTN
Candice M. Plaintiff Appellee, HENRY,
Paul E. Defendant Appellant.
Civil No. 970370.
Supreme of North Dakota. Court
July 1998.
Rehearing Aug. Denied
922
MESCHKE, Justice. Henry of di- appealed a decree Henry compel the trial vorce from Candice testing genetic paternity court to order support. of child to contest the amount of Cand- affirm and remand for consideration attorney’s fees on request ice’s for February on Mitchell was born Candice, 13, parents, 1995. His Paul and 21, April married on 1995. From were later marriage, daughter previous Paul has living in Montana. When he married Cand- ice, Captain in the States Paul was a United Forks Air stationed at the Grand Base, $55,000 nearly year- earned ly navigator. as a 1995, In November Paul asked the 1, duty Air Force to end his active on June attempted 1996. Paul to withdraw this re- 3, 1996, quest May on while he was on tem- porary assignment abroad. Paul returned to 12, May Forks Air Force Base on the Grand and, day, the next was arrested for against Candice. As a re- domestic violence sult, Paul’s re- the base commander denied 23, duty May on quest to remain on active 1996, explaining: Although Captain Henry duty has a sound record, off-duty ques- calls into his conduct suitability tion his for continued judgment poor service. He has exhibited handling personal affairs as evi- by denced his arrest for domestic violence (Even May though the matter on 13 pursued will not be authorities at the request spouse). of his May Candice sued Paul for divorce on 1996, just days separated two before Paul from the Air Force. interim Candice moved for an order.
Although unemployed Paul was when the 27, 1996, the trial motion was heard on June court found he “has a historical ca- month,” pacity of at least $3600.00 other than a month- and “financial resources Carter, Moosbrugger, Dvorak Grand & ly income to of his son.” assist Forks, plaintiff appellee; argued by Temporarily, placed primary Shirley A. Dvorak. physical custody of Mitchell with Candice 1, 1996, III, Forks, and, ordered Paul to Ward K. Johnson effective June appellant. defendant and 14-17-10(1). Paul claims the tri- Paul N.D.C.C. began April When genetic testing at physical al court’s failure to order primary cus- his claim for
withdrew “improperly request [him] denied August At the tody of Mitchell. trial, remedy afforded the statute to rebut the testimony, for continuation presumption paternity.” of his time, paterni- Mitchell’s questioned the first *3 30, 1997, the trial court September ty. On brief, In Paul his “re- insists [¶ 9] divorce, custody placed physical the granted genetic paternity was both quest for a test Candice, ordered Paul to with and of Mitchell timely. eighteen sufficient and There was pay support her child responses questions directed towards and in arrears monthly to be accumulated paternity August issue of at the the appeal- law school. while Paul attends carefully the hearing.” We have reviewed ed. transcript, including specific entire trial testimony there references. While Testing I. Genetic testimony subject Mitch- about the argues support he asked the trial paternity, nothing ell’s we find [¶ 6] genetic testing. He asserts requested court for for not genetic testing. decision was erroneous trial court’s order pa testing to determine his ordering genetic application for an “An to the court ternity of Mitchell. by order shall be motion....” N.D.R.Civ.P. by Paternity governed the Uniform 7(b)(1). genetic not move for test- Paul did “The at N.D.C.C. ch. 14-17. Parentage Act post-decree ing until his “Motion Order this may be established under natural father Paternity November for Genetic Test” on § “A man is chapter.” N.D.C.C. 14-17-03. then, supporting In brief Paul said the natural father of presumed to be during proceedings that he he “stated birth, ... child’s that man and if: [a]fter father was unsure whether he was the child’s ... mother have married the child’s natural misrepresentations frequent because consent, that man is ... the man’s [w]ith [Candice], by to him and also because made father on the child’s named as the child’s the minor child does not look like he believes § N.D.C.C. 14-17- certificate....” birth However, in that him.” nowhere brief did 04(l)(e). Thus, presumed to be during explain how he had moved However, father. under Mitchell’s natural compel paternity testing. Because trial to 14-17-04(2), presumption N.D.C.C. genetic testing was made Paul’s motion appropriate “in an action can be rebutted the trial court had entered divorce after convincing evidence.” only by clear and decree, pending in the trial and is still subject genetic testing is we conclude the presump- that will rebut the Evidence not here for review on this genetic testing. paternity tion of includes may, upon request of a The court child, mother, shall, II. require the Child
party tests, genetic alleged to submit to father A. including of blood or other tissues. tests Paul to The trial court ordered The tests must be: support with monthly child Candice $586 type generally acknowledged as a. Of a while of that to accumulate designat- by accreditation bodies reliable amount of law school. The Paul attends secretary of the United States ed “ability on Paul’s support was based department and human ser- of health $3,600, and net income of vices; obligation in recognizing the child laboratory approved by a b. Performed of Montana.” the state body; and by such an accreditation Paul contends expert qualified as an e. an Performed of child determining the amount specimens, erred genetic data or examiner support appointed by the court.
(1) cantly prevailing amounts earned pre- less than no determination of there was (2) support, correct amount sumptively occupational history qualifica- evidence to was insufficient (3) underemployment, tions. if the trial court in error even order was 75-02-04.1-07(l)(b). Fur-'’ N.D.Admin.Code underemployment. properly determined thermore, presumed un- findings of support determinations Child deremployed obligor’s gross “if the “clearly under subject to review fact sixth-tenths of is less than 52(a); N.D.R.Civ.P. erroneous” standard. prevailing amounts earned ¶ 6, Hieb,
Hieb v.
by persons with similar work
Wolf, 557 N.W.2d
(citing
qualifications.”
N.D.Ad-
Wolf
*4
(N.D.1996)).
finding
clearly erroneous if
A
is
75-02-04.1-07(2).
obligor
“If the
min.Code
law,
of the
if
on an erroneous view
it is based
‘underemployed,’
imputed
is
under
is
income
it, or if the entire rec
supports
no evidence
75-02-04.1-07(3),
earning
based on
NDAC
reviewing court with definite
ord leaves the
capacity,
gross earnings.”
Nel-
a mistake has been made.
and firm conviction
omitted).
(footnote
son,
underemployed, paid” based on “evidence of the income that evidence to set child experience earned those with similar define an underem- Guidelines skill; earnings state- leave and ployed parent obligated who is have ment shows what could earned [Paul] support: experi- and what those with similar skill and military’s pay “underemployed”
An if the obli- ence could earn under the is however, signifi- argues, the court gor’s gross income from scale.” called, because a at least $3600 witness was “[n]o erred per- person with his abilities could earn to establish what testimony presented, history simi- of the Air Force as well. qualifications and work amount outside son community.” in the lar to could longer Even if Paul was no impute cannot trial court He contends the qualifications Air his work employment be- on his former income based level, to earn at that demonstrated navigate tank- longer is no able cause he Forks like others did communi- Alternatively, he for the Air Force. ers might ty. Even he not find the same navigator’s imputation at a claims there, it was reasonable on this record for phasing because the improper capacity trial court to infer he had the agree. not navigator’s positions. We do out compar- other work there that would earn do Ebert, supervising Paul’s As Colonel ably. we affirm the trial court’s Base, Air Force testi- officer at Grand Forks underemployed. Paul was fied, “con- the trial court found Colonel Under N.D.Admin.Code 75-02-04.1- top five out of Paul to be one sidered 07(2), presumed Paul was to be underem- extremely strong “had navigators,” ployed “gross because his income from earn- Major,” promotion to but “the potential for prevailing ings is less than six-tenths of discharge Air Force considered *5 amounts earned in the voluntary separation.” After a with similar work Force,” separation from the Air “his qualifications.” The trial court found car “Paul has worked as a used court found $50,000” had “the to earn over annual- salesman, building manager as a law a or, ly effectively, gross exceeding $4167 began year law school over a clerk” before he monthly. would be Sixth-tenths $4167 also found Paul “admits later. The court monthly. trial Paul’s court found $2500 any steps he has not taken to secure earnings at the time of trial were actual ap- him employment provide that would with $1325, earnings only would be but his he had in proximately the same income as employment began part-time when he Likewise, applied military. he has not current actual earn- law school soon. Paul’s Guard, position the National even for a month- ings certainly were “less than” $2500 that he would though Colonel Ebert testified ly, and authenticate the was Indeed, when counsel asked qualified.” be underemployed. Paul, professional position or other “[w]hat for, you qualified have positions for which answered, for?”,
you applied “I did not D. apply any jobs.” obligor underemployed, When an But, “[i]mplied guideline ways in the to im- guidelines authorize several parent’s duty their to use the pute schedule and a income and direct the court assumption obligor ways: that an greatest children is the of those ability to earn income with a demonstrated 4 Except provided in subsections as level support his children at a certain on gross income based continue to so unless he can establish will do greatest of capacity equal to the subdivi- change.” v. legitimate reasons for Schatke c, gross earn- through sions a (N.D.1994)(cit Schatke, 520 N.W.2d 837 imputed obligor to an who is ings, must be (N.D. Olson, 572 ing Olson v. 520 N.W.2d unemployed underemployed. 1994)). extensively testifying In about Paul’s sixty- equal to one hundred a. An amount although ability, recognized, Ebert Colonel hourly minimum federal seven times fly longer eligible no for the wage. capable enough go any into he was “to pre- equal to six-tenths of any orga b. An amount type management [with] monthly earnings go vailing gross There nization that he would like to to.” fore, persons for the we conclude it was reasonable occupational qualifications. capable history and court to infer Paul was thus delay paying portion percent A in of the equal ninety c. An amount gross appropriate greatest average support ordered is obli- obligor’s income, temporary months monthly earnings, gor twelve has a reduction thirty-six said, months after beginning on or have proceeding commencement of before frequently pay- better to it will defer evi- for which reliable before the support payments, ment of provided. dence reducing obligation, when the without 75-02-04.1-07(3). N.D.Admin.Code Under temporarily unable to meet the (b), imputed Paul’s subsection obligation. .6). ($4167 x would be Under income (N.D. Nelson, Nelson v. (c), monthly gross imputed subsection 1996). Here, tempo Paul’s income has been .9).1 x $4,143.46 ($4,603.85 would be rarily, voluntarily, his ca reduced below (c) yields the under subsection Imputation pacity while he attends law school for three monthly gross income that greatest years. compute child guidelines direct to trial, At claimed support is com- The amount of child only years. meager would be a few He income and the puted on the net him, degree law will enable claimed his supported. number of children time, salary commensurate with his to earn a 75-02-04.1-10. The trial N.D.Admin.Code salary, enabling former Air Force him to imputed monthly net income to accordingly. support Mitchell with an Paul. This net amount is consistent temporarily on Paul’s reduced actual based $4,143.46. imputed gross amount of See earnings, the accumulation of we conclude Ullman, Berg while Paul attends law school was (method calculating in- N.W.2d appropriate, and we affirm it. gross). monthly A net income of come *6 support obligation result in a would $3600 Attorney III. Fees 75-02- for one child. N.D.Admin.Code $669 however, 04.1-10. The trial ordered Concluding custody “Paul’s ac [¶ 26] $586, support in child the lesser amount of Summary Judgment for and Motion in “recognizing support obligation the child merit,” were without the trial court ordered the state of Montana.”2 See N.D.Ad- pay Paul towards attor to Candice’s $4900 min.Code 75-02-04.1-06.1. are not con- ney’s through fees trial. Candice seeks rea the trial a mistake vinced court made attorney’s appeal. fees for this sonable ordering monthly. child request. “Although respond did not to this Therefore, we affirm the court’s child jurisdiction we have concurrent with the trial support order. issue, recognized court to this we have decide generally posi court is in a better the trial E. Wag tion to consider the relevant factors.” complains trial court the ¶ 117, 11, Wagner, ner v. arbitrarily by “establishing acted the accu Withey Hager, (citing N.W.2d arrearages mulation of month for ¶ ND years the to followwhile he attends law three we remand for to consider school,” claiming arrearage the interferes attorney’s request for fees. Candice’s “opportunity yearly a review of support obligations” under N.D.C.C. IV. Conclusion 14-09-08.4(3). However, nothing § in this precludes We affirm the trial court’s decree order either or Candice annually. ordering pay monthly Paul to seeking a modification at least questioned 1. The reliable of Paul's 2. Neither Candice nor Paul record includes greatest gross monthly earnings. obligation His of this reduction for Paul’s amount April stub for the month of showed a a second child. $4,603.85, monthly year a to income of $18,415.40 ($4,603.85 monthly). date income of navigator, Henry to an Air Force tanker accumulate support, with $236 necessary occupational qualification attends law school. We lacks he while position. of Candice’s re- for that was done here remand for consideration What attorney’s equivalent imputing prevailing salary fees for this to quest for orthopedic surgeons to C.J., WALLE, 28] VANDE [¶ practice to whose license medicine JJ., NEUMANN, concur. MARING and argument, had been revoked. At oral Cand- Henry imputation ice conceded such would SANDSTROM, Justice, concurring and improper. be dissenting. testimony majority The refers to does Because the evidence not estab- supervising suggesting Paul Hen- officer underemployed for the lish Paul ry might get position to a as able Guidelines, I purposes of the Child navigator. Guard Yet National tanker there majority II of respectfully to dissent is no evidence such a is available in opinion. “community,” which the Guidelines define Henry filed for di- Before Candice “any place as within hundred miles one vorce, voluntarily to Henry had filed [160.93 kilometers] Air separate Subsequently, Force. place of N.D. Admin. residence.” Code request sepa- sought he to withdraw his 75-02-04.1-07(l)(a). Force, the Air Force rate from the Air but asserts, majority The at 19: request stay in. He cannot refused his if longer “Even Paul was no the Air salary as an Air Force tanker navi- qualifications gator he is out of the Force and now that ability at in, demonstrated an to earn yet majority imputes get cannot back level, like others did in the Forks salary him based on his as an Air community. might not find Even he navigator. Force tanker there, same work it reasonable on this Henry points out in her [¶ As Candice 31] record for trial court to infer had brief: capacity to do other work Ap- trial court determined that the “The earn comparably.” would pellant to earn had the majority’s problem with the bald asser- $3,600, and the trial court *7 is there is was no evidence Appellant’s monthly established the earn at outside of able to that level obligation at month. $586.00 the Air Force in the Forks communi- (App. The trial court made this at ty. “others ... Nor upon Ap- one determination based community” with similar in the Grand Forks pellant’s earnings leave and armed forces history qualifications, work 69).” (App. at statements. at that level.” outside “earn added). (Emphasis majority I concur in I of the the Guidelines: [¶ 32] Under opinion. I calculation would remand for ‘underemployed’ “An obli- obligor is the Guidelines. consistent with gor’s signifi- income from prevailing cantly than amounts earned Dale V. Sandstrom occupational qualifica- tions.” l-07(l)(b)
N.D. 75-02-04. Admin. Code added). being
(emphasis Because in the Air in) (or get back qualification being
necessary occupational