In the Interest of D.L.M.
Kristinе K. Duller, for herself and as Guardian Ad Litem for the minor child, D.L.M., minor child and D.L.M., Plaintiffs and Appellants
v.
Christopher J. MacGillivray, Defendant and Appellee.
Supreme Court of North Dakota.
Tina M. Heinrich, Assistant State's Attornеy, P.O. Box 2249, Minot, ND 58702-2249, for plaintiffs and appellants. Submitted on brief.
Christopher J. MacGillivray, defendant and appelleе. No appearance.
Opinion of the Court by VandeWalle, Chief Justice.
VANDEWALLE, Chief Justice.
[¶1] The Minot Regional Child Support Enforcement Unit ("Unit") appealed from a distriсt court order dismissing its motion to modify C.J.M.'s child support obligation. We reverse and remand.
I
[¶2] K.K.D. is the mother and C.J.M. is the father оf D.L.M. A 1998 judgment required C.J.M. to pay $133 per month in child support. As required by N.D.C.C. § 14-09-08.4 the Unit conducted a review of the prior child support order and, concluding C.J.M.'s obligation was less than eighty-five percent of the amount required by the guidelines, brought а motion seeking modification of the 1998 judgment under N.D.C.C. § 14-09-08.4(3). A hearing was held on the matter. The district court found C.J.M. was unemployed but attending college full-time, and that in the last thirty-six months, he had gross income of $20,724 over a twelve-month period from Junе 2001 through May 2002 as an employee with Reliastar. The district court denied the Unit's motion to modify C.J.M.'s child support obligation.
[¶3] On appeal, the Unit contends C.J.M.'s monthly child support obligation should be $298 per month, and the district court erred as a matter of law by deviating from the child support guidelines in N.D. Admin. Code ch. 75-02-04.1.
II
[¶4] Parents have a duty to support their children to the best of their abilities. Otterson v. Otterson,
gross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross earnings, must be imputed to an obligоr who is unemployed or underemployed.
a. A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wаge.
b. An amount equal to six-tenths of prevailing gross earnings in the community of persons with similar work history and occupаtional qualifications.
c. An amount equal to ninety percent of the obligor's greatest average gross monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the prоceeding before the court, for which reliable evidence is provided.
The subdivision resulting in the greatest imputеd income must be used. McClure v. McClure,
[¶5] Additionally, if an obligor makes a voluntary change in employment a judge has discretion to impute "monthly gross income equal to one hundred percent of the obligor's greatest average monthly earnings, in any twelve consecutive months beginning on or аfter thirty-six months before commencement of the proceeding . . . less actual monthly gross earnings." N.D. Admin. Code § 75-02-04.1-07(9). Seсtion 75-02-04.1-07(9) allows imputation of income where it otherwise would not be allowed. Minar v. Minar,
[¶6] The child support guidelines are administrative rules promulgated by the North Dakota Department of Human Services in accordance with N.D.C.C. § 14-09-09.7 and have the force and effect of law. McClure,
a. State the child support amount determined through application of the guidelines;
b. Identify the criteria that rebut the presumption of correctnеss of that amount; and
c. State the child support amount determined after application of the critеria that rebut the presumption.
N.D.C.C. § 14-09-09.7(3).
[¶7] In its Findings of Fact and Order, the trial court determined C.J.M.'s highest gross income for twelve consecutive months within the last thirty-six months was $20,724. However, it did not specify the proper amount of child support commеnsurate with this amount of income. From our review of the record, it appears the child support amount would be significantly higher than $133 per month. Nor did the trial court specify whether or why it found the amount under the guidelines had been rebutted.
[¶8] Because the child support amount provided by the guidelines is presumptively correct, we must reverse the trial court's order and remand this case to the district court to comply with N.D.C.C. ch. 14-09 and N.D. Admin. Code ch. 75-02-04.1. On remand, the trial court must either order C.J.M. to pay child support in the presumptively correct amount under the child support guidelines or comply with N.D.C.C. § 14-09-09.7(3) and make specific findings regarding any deviation from the presumptively correct amount.
[¶9] Gerald W. VandeWalle, C.J.
Carol Ronning Kapsner
Mary Muehlen Maring
William A. Neumann
Dale V. Sandstrom.