Surerus v. Matuska

elude support- there is substantial evidence jury’s special verdict Schutt injury.

did not sustain a serious

Ill

Schutt the trial claims court abused refusing grant

its discretion in a new trial. Osmundson,

In Marohl v. (N.D.1990),

146-147 we summarized our a trial reviewing

standard for court’s decision

on a motion trial: for new deny

“The decision a new trial rests

in the sound discretion of the trial jury

court.... To set aside verdict and

grant trial, a new trial court must find manifestly against

the verdict to be

weight appeal, of the evidence.... On light

review the evidence most fa-

vorable to the verdict and the trial court’s grant

refusal to a new trial based

insufficiency of the evidence will not be

disturbed unless a manifest abuse of dis- shown_” (Citations omitted.) cretion is

Having concluded there substantial evi- verdict,

dence jury we further

conclude the trial did court not abuse its

discretion in denying Schutt’s motion for a

new trial. opinion, judg- accordance with this denying

ment and the order a new trial are

affirmed. C.J., WALLE, NEUMANN,

VANDE MESCHKE, JJ.,

MARING and concur

Tammy SURERUS, Tammy Flaten, f/k/a Appellee,

Plaintiff and MATUSKA,

Mark Thomas Defendant Appellant.

Civ. No. 950423.

Supreme Court North Dakota. pay per support. child

dered to month $50.00 many obligation This has been reviewed since, times but has not been increased until review, by motion the most recent initiated Regional Fargo Support Enforce- Child (Unit).1 hearing The was held on Unit 5, 1995, July and Matuska’s was per increased to month. $250.00 1995, early May a few other Since on 1979, dating occasions Matuska has back been incarcerated at the North Dakota State sentences, Penitentiary. prison Between jobs and also has Matuska has held various college a full-time student. Be- attended as 1994, August ginning in he worked for a Fargo earn- business as a structural drafter 1995, mid-January per hour. In his $7.00 hourly wage per was increased hour. $8.00 employment April left in late Matuska begin serving his current sen- projected August release is 1998. tence. His increasing support Matuska’s child gation per per month to $50.00 $250.00 month, found, judicial referee because of incarceration, “voluntarily Matuska’s was unemployed/underemployed” under section of the child 75-02-04.1-07 The determined Matuska had referee $1,133.00 on his monthly net income of employment most recent structural per Applying hour. drafter $8.00 (3)(c) 75-02-04.1-07, the of section Bertsch, Attor- Daniel E. Assistant State’s monthly multiplied in- Matuska’s net referee ney, Fargo, Appellee. Plaintiff $1,020.00, percent, come times 90 arrived Matuska, pro se. Fargo, Mark Thomas to Matuska as and then this amount pre- The determined income. NEUMANN, Justice. sumptively correct amount of net income of for an appeals an order Mark Thomas Matuska $1,020.00 per month. and one child $250.00 support obligation. amending his child findings proposed these The referee set forth imprisoned obligor has no who hold that August and conclusions a decision dated compute a on other income may support obligation purpose imputing underemployed for the timely requested a review the Matuska support guidelines. the child income under judicial referee’s recom- district court and remand. We reverse findings The dis- and conclusions. mended findings the referee’s Tammy par- are the trict court determined Surerus Matuska clearly erroneous son, April were Christopher, conclusions of a born ents 14, 1982, order ae- April and amended the April or- 1979. On $3,700.00. arrearages totaling over July hearings and October At held in arrearages paid are now indicates the record additional Matuska was ordered month, in full. per $25.00 toward which was Eklund, (N.D.1995) cordingly. appeals the district 184-85 order. court’s amended (discussing support agency’s authority periodically review and seek amendment arguments appeal challenge Matuska’s permanent of child orders under sec- court, jurisdiction of the district the au- 14-09-08.4, N.D.C.C.). argu- Unit, thority validity of the and the ment on this issue also is without merit. application of section 75-02-04.1-07 of the support guidelines. child We address each arguments final are direct Matuska’s turn. sup ed at section 75-02-04.1-07 the of first contests the district court’s port guidelines, permits imputing in personal jurisdiction parties of the and the underemployed come to an jurisdiction subject-matter court’s of the ac- obligor First, earning capacity. legal tion. He no asserts factual or basis for Department contends the of Human Services argument; the it determine is without (Department) grant of authority exceeded its merit. 14-09-09.7, N.D.C.C., under section because argues the definition of “income” under

Matuska also the district court jurisdiction 14-09-09.10, N.D.C.C., lacked of section support amend his child does not Therefore, obligation. “imputed is well It established that a include income.” dis he as serts, continuing jurisdiction Department trict impermissibly expand court has the mod ify support E.g., a ed the promul order. definition “income” when it Rueckert v. Rueckert, gated (N.D.1993); imputed guideline. income Nelson, see Nelson 547 N.W.2d 741 recently this court’s filed Nelson deci- (N.D.1996)(indicating change a material in sion, imputed we determined the required only is now circumstances when a guideline “a reasonable exercise of the sought modification is within less than one authority” rule-making Department. order). year entry support after of the child 744. Although N.W.2d at the “income” therefore, argument, This also is without guidelines encompasses considered under the merit. more than sources “income” as defined under argues 14-09-09.10, N.D.C.C.,2 next Unit lacked this court authority seek review and modification of further held in Department’s Nelson that the obligation. support his child authority promulgate Matuska claims request guideline Surerus did not a statutory review his child derived from its directive support obligation and the “designate Unit did not have other available resources to be assignment support an rights from Sure- considered” in determining support a child rus. At time of obligation motion 745; Unit’s under Id. at support obligation, 14-09-09.7(l)(c). increase Matuska’s child § N.D.C.C. The receiving Surerus was guideline medical assistance an obligor’s is based on right benefits. The Unit had earning capacity. to seek § 75- reimbursement these benefits from Earning capacity child 02-04.1-07. is a resource support payments regardless Nelson, request by of a obligor. available an 547 N.W.2d Surerus, 14-09-08.4(l)(a), § N.D.C.C. Therefore, or an argument assignment support rights by guideline Surerus. about the definition “income” Mehl, Mehl v. 545 N.W.2d differing statutory from the definition fails 1996) (indicating given Department the State also is because scope was within its statutory assignment to authority seek reimbursement under section 14-09-09.7 when it benefits); for medical assistance adopted Eklund v. guideline. benefits, 2. Income nuity under section 14-09-09.10 is defined excluding and retirement but as: public assistance benefits administered under state law.” payment, regardless "... form of source, 14-09-09.10(6). obligor, N.D.C.C. including any owed to an Income under the earned, unearned, precisely "gross defined taxable or nontaxable in- is more come, compensation, disability Compare workers’ income.” id. bene- with N.D. Admin. Code fits, benefits, 75-02-04.1-01(5). unemployment compensation an- sought year entry argues, within one after if the Matuska last valid, judicial at guideline order. 547 N.W.2d 744. is incorrectly.3 agree, peri and re 14-09-08.4 directs applied it Because section now orders, guide application mand for a correct of all child Ek odic review lund, 184-85, recently light opinion and the line in N.W.2d at opinion. subject filed Nelson an is increase de regardless crease “voluntariness” of child A trial court’s modification obligor’s “involuntariness” of finding of fact that will Nelson, 547 financial circumstances. See Rueckert, clearly erroneous. set aside unless N.W.2d at A of fact is clearly induced erro erroneous if judicial referee found Matuska was law, if no evidence exists to neous view unemployed underemployed, either or if, record, entire we are it or on the him income to under subsection firm that a left with a definite and conviction (3)(c) guideline, the based of Dalin, mistake has been made. Dalin 545 earnings a evidence of Matuska’s the (N.D.1996). of N.W.2d 788 Conclusions during structural drafter the four months Gajewski Tay fully law are reviewable. preceding present At the his incarceration.4 (N.D.1995). lor, N.W.2d July hearing, he Matuska indicated prison, expected in he but Apparently this relying on court’s decision employed wage at a basic of would be Williams, $1.25 in Koch v. N.W.2d might get per day. He stated em- also he 1990), judicial referee found Matuska’s the industry in income) ployment program with the the (and resulting loss of incarceration prison wage per to at a hour. $.32 $1.40 voluntary act, and further found Ma- was a argument, At Matuska indicatéd was oral voluntarily unemployed tuska was therefore per prison in earning month but antic- $50.00 not underemployed. The referee did need or higher wage. a At the ipated hear- voluntary in incarceration to find Matuska’s objected appeal, Matuska to the and on impute to him under section order to pre- his imputing income based on guidelines. As ex 75-02-04.1-07 the argued his earnings. He incarceration Nelson, trigger application of plained in to support obligation should be calculated based guideline, obligor only meet the the need earnings present because he is unable on his underemploy unemployment or definition of is concerned the amended amount and ment. at 743. resulting debt hinder his the accrued would current Under the prison. from his release rehabilitation Nelson, in guideline law as the discussed guidelines do not Though arguably the obligor’s in fi of an “voluntariness” of an incarcerated carry contemplate the the situation does not rel nancial circumstances necessary apply obligor, modifying sup nonetheless evancy it in once did develop them a workable solution. Ordi- the port obligation, unless modification greatest average gross obligor's earn- argues in the the referee erred calcu- 3. Matuska also ings, beginning lating because the on or his twelve months after “other two did account for his calculation not thirty-six commencement the months before multiple-family as allowed under the children” proceeding court." N.D. Admin. Code before However, provision added). 75-02-04.1-07(3)(c) (emphasis § In- present evidence to the referee failed to this stead, imputed based on Matuska's income was Further, 5, 1995, hearing. only July hour, per wage $8.00 he earned for less concerning two in the other evidence record beginning his current before than four months finding in a is a the referee decision children During four sentence stating “[Matuska] has dated October per period preceding $8.00 five hour month living in his home.” It is unclear two children per $7.00 The rec- wage, earned hour. finding duty owes this whether Matuska earnings for the not indicate Matuska's ord does to the children. remaining of the twelve- three to four months out preceding period present his incarcera- month incorrectly the referee subsec- 4. We note tion. (3)(c) income was not tion because ninety percent equal "[a]n based on amount narily, finding unemployment gross earnings. of either actual 75-02-04.1-07(3)(a). necessary impute § underemployment is in- section come under 75-02-04.1-07. Referring unavailability employ- However, as will be- opportunities “community” within the case, apparent, come on the facts (defined elsewhere as the important of one or the is not other area within hundred one miles because it would be a distinction without a gor’s residence), place actual too, Ordinarily, analysis difference. unavailability im- makes such the basis for proceed calculating would then the amount puting wage a minimum sub- impute of income to an (3)(a), section rather than greatest of imput- the three variations of prevailing on the wage relevant under sub- (3): ed income under subsection minimum (3)(b) past earnings under subsec- wage, wage, prevailing past relevant earn- (3)(c). Though opportuni- employment ings. N.D. Admin. Code 75-02-04.1- may ties as a well structural drafter exist 07(3)(a),(b),(c).5 But within peni- one hundred miles of the state guideline provides exceptions general to the opportunities tentiary, the' are available (3). E.g., rule of subsection id. 75-02- to Matuska while he is incarcerated because 04.1-07(4). We sufficiently believe Matuska Therefore, prison.7 cannot leave sub- general by showing rebutted this rule under (6) section be should to an incarcerat- (6) employment opportunities that obligor ed as such Matuska who has no other are community unavailable to him in the income, apparently ineligible who for work opportunities because his are limited to the release, earnings and whose in confinement prison.6 are less minimum wage. than the (6) Subsection of the income guideline provides: recognize analysis this an incarcer- unemployed “If underemployed or obli- obligor might ated be viewed as strained gor opportunities, that employment shows application guideline, of the provide earnings which would least (6), especially subsection but we reiterate the equal to lesser of the amounts deter- par- do not otherwise address the mined under subdivision b or c of subsec- ticular circumstance of an incarcerated obli- 3, community, tion are unavailable in gor See, such e.g., Spilovoy as Matuska. v. must be (N.D.1992). Spilovoy, 488 N.W.2d 878 capacity equal to the amount determined Also, we think it unreasonable to assume the subdivision of subsection less guideline impute drafters intended to gross earnings.” actual obligors employ- incarcerated on 75-02-04.1-07(6). N.D. opportunities Admin. Code not available to those Sub- ob- (3)(a) imputes ligors. application income based on proper We conclude “[a]n equal sixty-seven particular amount to one hundred under Matuska’s circumstance of hourly times wage” federal minimum less incarceration. (3) provides: earnings, any beginning

5.Subsection twelve months thirty-six "Except provided as 4 on or after before in subsections months com- gross monthly earning capac- proceeding income based mencement of the before the ity equal greatest court, to the subdivisions pro- for which reliable evidence is c, through imputed gross earnings, less actual must be vided.” obligor to an iswho 75-02-04.1-07(3). underemployed. equal sixty- a. An amount to one hundred Nothing suggests in the record Matuska owns hourly seven times the federal minimum assets, any investments other has other wage. possibility might source or of income that exceed equal prevailing b. An amount to six-tenths of wage. the federal minimum gross monthly earnings community in the persons history work similar nothing indicating 7. There is in the record occupational qualifications. possibility of work release for Matuska. equal ninety percent c. An amount of the obligor’s greatest gross average Bowers, Washington Further, in Bowers application believe of subsec- Court (1937): to an 74 P.2d guideline 192 Wash. “ obligor cases, who has no other ‘While, policy incarcerated in these it is the strong promotes state’s appropriately require adequately the law to fathers interests public policy protecting the best families, provide for their it is not legal and preserving parents’ children policy impose upon the law them children, obligations their moral perform.’” obligations they cannot excusing, obvi- recognizing, but not while obligors I not believe it is to release do wise difficulty obligor faces ous an incarcerated arrearage sup- prison with an from Koch, or her providing for his children. large that inconceivable the port so it is ar- response Our to the N.W.2d pay it. obligor enough will able to be earn gument an accrued child debt about not the Although majority in Koch is hindering rehabilitation release position jurisdictions consider unanimous here in Koch— is the same as it was Pierce, see, issue, e.g., ing this Pierce paid month can be “the amount to be each (1987), Mich.App. adjusted financial then re- [the] condition one, appears equitable result here obli- quires.” Id. at 302. An incarcerated i.e., recognizes reduced income post- gor’s is further alleviated “burden” does obligor as a result incarceration but obligor seek that is entitled to Koch because totally relieve the support order at and modification of a review a result incarceration. payments as of that annually. at 743. least Accordingly, we instructions remand with guideline apply above method Matuska’s child

recalculate gation. modifying The order Marilyn CARLSON, Claimant support is reversed. Appellee, MARING, MESCHKE and DAKOTA, JJ.,

SANDSTROM, concur-. JOB SERVICE NORTH Respondent, WALLE, Justice, concur- VANDE Chief ring in result. Department Human Dakota North agree in the result. I the issue I concur Services, Respondent and Williams, 456 Koch v. Appellant. 1990), an obli- whether incarceration of CARLSON, Marilyn Claimant gor circumstances so constituted Appellee, support. justify a reduction in child as to statutory changes discussed Because I majority opinion, agree also whether DAKOTA, JOB SERVICE NORTH longer voluntary no incarceration is not Appellant, Respondent and However, it was in significant as Koch. whether or question remains basic obligors ar- should accumulate Department incarcerated Human North Dakota they are support payments when rearages Services, Respondent. money to earn and unable sufficient confined Nos. Civil guide support. pay Dakota. Supreme Court of North specify amounts the presumably lines fully employed. if

can could Hoster, 698, 702

In Hoster v.

(N.D.1974), quoted approval the Court Supreme following statement

Case Details

Case Name: Surerus v. Matuska

Court Name: North Dakota Supreme Court

Date Published: May 29, 1996

Citation: 548 N.W.2d 384

Docket Number: Civ. 950423

Court Abbreviation: N.D.