*1 NELSON, Plaintiff Keith Michael Appellee, NELSON, Jody Lynn
Jody Lynn n/k/a
Novak, Appellant. Defendant and No. 950299.
Civil of North Dakota.
Supreme Court
May 1996. *2 Brainerd, MN, Ohlsen, Ltd.,
Richard A. appellee; argued by Richard plaintiff Appearance by A. Alan M. McDo- Ohlsen. naugh, Law Clerk. Forks, ND, Braaten, Ltd.,
Karen K. Grand appellant; argued by Kar- for defendant and Block, law, Lynn Appearance by al and a court should not Braaten. en K. change obligor’s voluntary unless an of em-
Law Clerk.
ployment
all of the
is not “reasonable under
(3)
circumstances”; and
even if the underem-
MESCHKE, Justice.
*3
applied, Jody
ployment guideline
had failed
a
Lynn
appeals
Nelson
from decree
Jody
present
and
of
to
relevant
reliable evidence
support payable by
child
her
decreasing the
prevailing wage
in the
for a
ex-husband,
Nelson. Al-
Keith Michael
person
qualifi-
with Keith’s work
and
much of
though
with
the trial
we
cations.
trial court concluded that
reasoning
refusing
impute
for
to
more
court’s
$900,
monthly
and re-
Keith’s
income was
Keith,
one
agree with
valid
income to
we
support obligation
duced his child
to $252
Therefore,
and with the result.
reason
monthly. Jody appeals.
affirm.
A
a child
trial court’s modification of
30,
May
married on
Jody and Keith were
support
finding
will
award is a
of fact that
Lynn
1981,
Erica
was
and had two children.
clearly
not be
unless it is
erroneous.
reversed
7, 1982,
Ashley Nicole
born on
was
June
189,
Mahoney Mahoney, 538
191—
v.
4,
Jody
born on June
1987. Keith
were
(N.D.1995).
Mahoney,
explained
As we
January 28,
The divorce
on
1992.
divorced
clearly
“finding
a
if it is
of fact is
erroneous
custody
the two children
placed
decree
of
law, if
by
induced
erroneous
an
view of
pay
Jody, and
Keith to
ordered
$526
if,
supports it or
on the entire
no evidence
1992,
support.
monthly child
In December
record,
a
firm
we are left with
definite and
when
decree was amended
Keith
the divorce
mistake
made.”
conviction that a
has been
payment
agreed
support
to increase his
monthly.
$568
Voluntary
Temporary.
1.
&
divorce, Keith worked for the
Before the
Jody argues that
“trial court
an
Company
Door
as
installer.
Overhead
Keith’s
granting
erred
modification of
$27,130.
gross
had been
His 1991
support obligation
child
Keith’s reduction
1992, Keith left Overhead Door
About June
voluntary
temporary.”
in income was
for the
River Overhead Door
work
Red
disagree.
voluntary
employ
change
A
of
$17,361 in
Company. He
1992. In
earned
resulting in
income does
ment
a reduction of
1993, Keith
River to start his
June
left Red
not,
itself,
by
an
from seek
foreclose
1994,
door
In June
own
business.
overhead
obligation.
ing
support
of a child
$8,292
bankruptcy.
earned
Keith filed
Keith
obligor had
a
Formerly, an
to demonstrate
$10,005
1993,
in 1994.
a
change in
before
material
circumstances
1995,
January
In
Keith moved
reduce
support
child
order would be reduced.
support
a
obligation
child
due to “dramat-
9,
Sweeney
Hoff,
v.
478 N.W.2d
resisted,
Jody
ic reduction of income.”
as-
1991).
determining
factor in
primary
A
serting that
income reduction was
Keith’s
change
occurred was
whether such a
had
only
voluntary
temporary. Comparing
change in the
had been “a
whether there
“hourly” income to his 1991
Keith’s 1994
parties.” Id.
financial
of the
circumstances
Door,
hourly wage of
at Overhead
$10.50
change
Moreover,
of the
the voluntariness
Jody urged
“underemployed”
that Keith was
determining
considered when
was also
of
Dakota
application
for
the North
Child
change warranted modification
whether the
Guidelines,
NDAC 75-02-04.1-
Support
see
id.;
award. See
Huffman
the court
more
and asked
(N.D.1991);
Huffman, 477 N.W.2d
if
obligation.
Keith
modified his
income to
it
Gabel,
722, 723
see also Gabel v.
(N.D.1989) (“cause
change”
of
was relevant
evidentiary hearing,
the trial
After
(1)
factor,
change
“including
was
underemployment
whether the
court concluded:
temporary
it was
permanent
and whether
inapplicable
Keith was
was
because
(2)
part
voluntary
neglect
to a
act or
“underemployed”;
due
“self-employed,” not
Thus,
opin-
prior
obligor”).
under our
underemployment guideline is unreason-
change
ions,
able,
by
voluntary
nature of Keith’s
unnecessary,
required
and not
feder-
more,
sup-
Jody can have the
would have been a
business earns
in financial circumstances
accordingly.
increased
factor to consider.
relevant
Now, however,
legislature
our
has au
Underemployment
2.
Guideline.
periodic review of all
thorized and directed
Jody argues
trial court erred
Eklund,
support orders. See Eklund v.
un
it declared NDAC 75-02-04.1-07
when
see also
185-86
538 N.W.2d
agree with
this
reasonable. We
Garbe,
742^3
467 N.W.2d
Garbe v.
remedy
underemployment
obligor only
Consequently, an
rule-making
exercise of the
au
reasonable
change in
a material
to demonstrate
has
thority
Department
of the North Dakota
modification of a child
circumstances to seek
Human Services.
*4
year
entry.
after its
support
within one
order
ability
sup
obligor’s
pay
An
child
14-09-08.4(3);
Mahoney,
see
538
NDCC
solely
actual
port is not
determinable from
obligor properly
If the
seeks
N.W.2d at 192.
income,
obligor’s earning capacity
an
year,
14-
modify
one
NDCC
an order after
utilized,
recognized
also can be
we have often
09-08.4(3)
modify
requires the trial court to
Gabel,
in
past
our
decisions. See
434 N.W.2d
obligation “to conform the amount of
Cook,
724;
74,
at
Cook v.
364 N.W.2d
76
required under
support payment to that
child
Burrell,
(N.D.1985); Burrell v.
359 N.W.2d
support guidelines.”
the child
381,
(N.D.1985); Skoglund
Skoglund,
v.
383
(N.D.1983).
795,
N.W.2d
796
See also
333
prove
not have to
a material
Keith did
(N.D.
628,
Perry,
Perry v.
382
629
N.W.2d
support
change in circumstances because his
1986) (obligor,
and maintain
who “could seek
year old. Since Keith is
order was over one
him
employment which would allow
to meet
sup
his child
periodic
entitled to
review of
obligation
support,”
for child
could be
necessarily
port obligation, it
follows that he
contempt
pay).
held in
for failure to
The
seeking the
absolutely precluded
is not
from
support guidelines
specifi
first child
did not
when,
voluntary change
to a
due
cally
imputation
authorize
income to an
of
guidelines
employment, application of the
of
unemployed
underemployed parent.
See
support
present income will reduce his
to his
715,
Heley Heley,
v.
506
722
obligation.
1993);
Spilovoy Spilovoy,
v.
488 N.W.2d
“appropriate
asserts
(N.D.1992). Yet,
in
explained
878
Olson
temporary reduction in in
relief for Keith’s
Olson,
(N.D.1994),
if
v.
520 N.W.2d
delay
making
for a
a
come would be
obligor
earnings
his
“an
with
established
support payments
portion of the child
rather
reason,
voluntarily,
good
tory
places
without
permanent
sup
in the child
than a
reduction
position
himself
where he is unable to
Reamann,
port payment.” See Schmidt
support obligations,
meet his child
income
523 N.W.2d
Hartman v.
earnings history
compatible
prior
with his
(N.D.1991).
Hartman,
may
imputed
calculating
support
child
be
agree
frequently
that it will
be better
guidelines.”
under the
payment
part
support pay
defer
of
Olson n
reason,” however, preced-
“rule of
ments,
obligation,
reducing the
when
without
adoption
specific child-support
of the
ed the
obligor
temporarily
unable to meet the
is
allowing
imputation
of income
However,
obligation.
considering the dura
obligor’s earning capacity.
based on an
See
tion and extent of the reduction in Keith’s
Schatke,
1;
id. at 573 n.
see also Schatke v.
years
during
more than two
since the
The trial court jobs, self-employed. or become free switch “underemploy adoption However, Department’s voluntary change if that results improper intrusion “underemployed,” ment” obligor becoming then In judicial into discretion. its Memorandum change made the should who complained ap Opinion, the trial court that greater make a sacrifice than his children. effectively would plication of any meaningful Branch of “rob the Judicial Underemployment. 3. Evidence of ...” support in child cases discretion uphold if Keith asserts that even justice] “only would re [of a cruel illusion 75-02-04.1-07, proper- NDAC the trial court imputing income to main.” We self-employed ly that a cannot found underemployed obligor significantly is an “underemployed” purposes imput- be discretion, judicial improper intrusion into ing In income. of the trial court’s imputation will hinder the adminis self-employed obligor that a determination justice. tration of “underemployed,” cannot be Keith asserts support guidelines Obviously, the child re- “underemployed” that he is not because he responsibilities loosely define the once dele- *6 continually working looking “is and for work gated judiciary, Legislature to the but jobs working and when he has available.”
rationally greater specificity that and decided disagree. uniformity necessary were in the determina- support pay- tion and enforcement of child guideline definition of “under particular guideline represents ments. This employment” earning capacity, is tied to not judicial improper no more of an intrusion into obligor to the amount of time the works. any discretion than do of the others. 75-02-04.1-07(1)(b), Under a court NDAC self-employed obligor Moreover, can income to a the new still al obligor’s “significantly if that income is less a lows court to exercise considerable discre prevailing earned in than amounts the com determining obligor tion when whether an munity by persons history with similar work “underemployed.” meets the definition of However, 75-02-04.1-07(1)(b) (“An occupational qualifications.” and See NDAC agree with Keith that this modification ‘underemployed’ obligor’s gross is if the in must be affirmed because the trial court earnings significantly is come from less than found, ultimately apply, if the did prevailing amounts earned in the Jody present that had failed sufficient by persons history with similar work and competent evidence under NDAC 75-02- occupational qualifications.” (emphasis add 07(1)(b) ed)). prove “sig that Keith earned 75-02-04.1-07(2), Under NDAC an ob 04.1— nificantly prevailing than amounts less ligor only presumed is to be “underem similarly by persons. earned” situated ployed” earning sixty if he or is she less than percent “prevailing” wage of the relevant competent Accordingly, sufficient evidence “community.” Under NDREv a “prevailing of the relevant amounts earned in presumption may is rebuttable and be over community” presented must be to the by contrary weighed by come evidence comparison obligor’s with the court judge. Judicial discretion thus continues. “gross earnings.” income from Absent ade- evidence, imputing quate in a court cannot find under
We also that “un- underemployed obligor come to an is some- NDAC 75-02-04.1-07 that is Jody accordingly im- offered evidence of the deremployed,” and cannot no other rele- wage in “prevailing” vant Keith’s “communi- pute income. ty” for those history “with similar work hearing, At Keith testified occupational qualifications” to his. per earning he hour when he that was $10.50 Jody “Clearly sufficient asserts: evidence left Door 1992. Keith also re- Overhead presented was the trial court to establish from sponded questions Jody’s coun- to these that the prevailing amount earned in this sel: community by person a with similar work years Q. got experi- you’ve about So history occupational qualifications as ence or in the door business. better hour, per Keith would be at least $10.50 A. Correct. earning amount Keith at the time Keith Q. you must have some idea of Then Using left Overhead Door.” Keith’s 1994 tax wage paid is that’s what the compute present hourly return to Keith’s area, door in this is that not installers hour, Jody argues at per that $4.99 correct? “underemployed” presumptively Keith is un- rhyme pre- 75-02-04.1-07(2) A. There is no reason to der NDAC because $4.99 wages occupation. The rea- vailing on this per “is of’ hour less than six-tenths $10.50 depends you’re I say court, however, son that is it who per hour. The trial discount- working testimony for. reliability ed the of Keith’s and the particular publi- relevance of the Job Service Q. you Door is Do know what Overhead cation, specifically found had installers, approximately? paying their “provided no reliable relevant nor data to top paid guy A. I elev- think the about persons show what work [Keith’s] per en hour. job earning a qualifications pre- are you Q. Okay. How about —are familiar wage.” vailing Specialties with Production here Grand recognizes Our of review standard Forks? posi trial in much better court is Mm-hmm, yes. A. weigh judge tion to the evidence they Q. paying you Do know what are credibility of witnesses. See Severson v. their installers? Hansen, heard, top guy paid A. I their The last Schmidkunz, Schmidkunz *7 eight was and nine. between unwilling are While we Q. say top paid, you you do And when obligor’s testimony that to hold an own is, paid person know the lower with what “prevailing” the never sufficient to establish the the bottom of scale? not wage “community,” in a we do believe IA. no idea. have clearly it was for the trial that erroneous wage, court to find that Keith’s 1992 and his addition, Jody In the asked trial court to companies pay were estimates what two judicial January take edi- notice in ing “top” their installers were door publica- tion of a Dakota Job Service North “prevailing” prove insufficient to the relevant Majrket tion, the NORTH Dakota LaboR Ad- wage for Keith’s work. wages manufacturing listed for visoR, manufacturing hour, Jody wages jobs per in at that the North Dakota and asserts $10.47 publication per area at shown in the “would Fargo-Moorhead the Job Service $10.21 Nordwall, wages paid in Sup- probative prevailing hour. Blaine L. Child be Amended, manufacturing as the installation business Guidelines Feb- Gavel, The (“For cases, require aptitude and education- ruary/March would similar at most backgrounds, college spe- or other al with no Labor Market Advisor NORTH Dakota reliable, judi- degree.” the modification hear- provides inexpensive, ... cialized At N.D.R.Ev.) (under however, ing, Jody’s counsel conceded that cially Rule noticeable industry” “manufacturing was “different earning potential. Unusual occu- evidence of listed.”). doing now.” The trial pations [Keith is] Other than Keith’s from what are not publication publication, specifically that the court found testimony and the Job Service states, haps, majority Depart- it is the [Keith’s] relevant evidence to as the “provided no ment of Human “effort to balance other editions of the Services’ occupation.” While obligor’s freedom to make reasonable em- monthly NORTH Dakota LaboR Market Ad- duty ployment decisions with his wage might give more relevant infor- visoR work, diligently.” employ- children But if the line of we do not mation for Keith’s reasonable, rule of ment decision must be for the trial believe that it was clear error applies. appears reason It to me the deci- court to discount the relevance of the manu- job high paying average for an January sion to leave a facturing wages in the shown fact, paying job may, in be unreasonable but edition. it make no difference if the is not will erroneously Although the trial court con- underemployed by guidelines. as defined underemployment guideline cluded unreasonable, inappropriate it was guidelines I promulgated, Under the not clear error for the trial court to find that majority opinion. I cannot with the present reliable had failed to sufficient concur the result. “prevailing” relevant evidence of the Therefore, “community.” wage in the even SANDSTROM, J., concurs. 75-02-04.1-07, the trial court under NDAC
properly refused to income to Keith. reducing affirm the Keith’s support obligation. J.,
NEUMAJMN, concurs. MARING, J., MUEHLEN was not a Martha Jane STRATTON and member of the Court when this case was Terry Stratton, Plaintiffs participate heard and did not this decision. Appellants, Justice, WALLE, concur- VANDE Chief ring in result. MEDICAL CENTER REHABILITATION guidelines apparently Under the it is ac- formerly doing HOSPITAL business as “plum” ceptable for the who holds a University Dakota Medical of North i.e., to, job, job, paying a well without conse- Hospital; Center Rehabilitation and the child, quences except freely to the leave the doing State of North Dakota business as job, job accept pay at a lower similar rate University of North Dakota Medical signif- but at a rate which nevertheless is not Hospital, Center Rehabilitation Defen- icantly less than the amounts Appellees. dants and persons earned Civil No. 950318. qualifications. similar work *8 plum job job holder of the can leave it for a Supreme of North Dakota. Court pays average obligor’s support payments will be re- May 1996. accordingly. duced Rehearing Denied June 1996. so, good there was reason to do Unless job good paying could not leave the support payment and have child reduced un- Olson,
der Olson v.
1994). apparently The “rule of reason” no and,
longer applies except within the first order,
year after a the reason for immaterial,
leaving good-paying job spite
even if the reason is to the custodial
parent guardian, long so as the average-paying position.
leaves for an Per-