Thompson v. JohnsonThompson v. Johnson
- Reporters:
- ,
- Before:
- McEvers
[¶ 1] Christopher Johnson appeals an amended judgment ordering him to pay $1,280 per month in child support. Heather Thompson cross-appeals from the judgment denying her request for attorney‘s fees. We affirm in part, reverse in part, and remand, concluding the district court failed to calculate Johnson‘s income in accordance with the child support guidelines.
I
[¶ 2] Johnson and Thompson have one child together born in 2013. The State provided Medicaid to the child before Johnson was adjudged the child‘s father. In May 2015, the district court awarded primary residential responsibility of the child to Thompson. Johnson, a self-employed farmer, was ordered to pay $314 per month in child support. In March 2016, Thompson moved for relief from the judgment relating to child support, arguing Johnson‘s previously reported income was not accurate.
[¶ 3] Before the hearing on Thompson‘s motion for relief, a discovery dispute arose between the parties. After Thompson requested Johnson‘s tax and banking records, Johnson moved for a protective order, requesting that Thompson be prohibited from serving him with further discovery requests. Thompson responded with a motion to compel Johnson to provide the requested information.
[¶ 4] At a March 2017 hearing on the parties’ discovery motions, the district court granted Thompson‘s motion to compel and denied Johnson‘s motion for a protective order. The court ordered Johnson to provide Thompson the requested tax and banking records. The court also ordered both parties to pay their own attorney‘s fees. Thompson then moved for an order to show cause and attorney‘s fees, alleging Johnson violated the order to compel by not providing the required information relating to his income. After a hearing, the court found Johnson was not in contempt of its earlier discovery order and denied Thompson an award of attorney‘s fees.
[¶ 5] At the hearing on Thompson‘s motion for relief from the judgment, Johnson submitted his income tax returns from 2012-2016 showing his average adjusted gross annual income was negative $50,972. Johnson and the State argued Johnson was underemployed on the basis of his income. They argued an annual income of $49,302 should be imputed to Johnson for child support purposes.
[¶ 6] The district court received a 2016 balance sheet showing Johnson had $4,003,495 in assets, overall equity of $1,224,533, and crops in storage of $691,895. On the basis of Johnson‘s assets, overall equity, crops in storage, and an
II
[¶ 7] Johnson and the State argue the district court clearly erred in calculating his income for child support purposes.
[¶ 8] The standard of review for child support decisions is well established:
Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. The district court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor‘s child support obligation.
Raap v. Lenton
,
[¶ 9] The child support guidelines found in N.D. Admin. Code ch. 75-02-04.1 govern child support determinations.
Raap
,
A
[¶ 10] Johnson is a self-employed farmer; therefore,
[¶ 11] Johnson provided his 2012-2016 income tax returns showing his adjusted gross income was: $40,458 in 2012; $30,988 in 2013; negative $180,860 in 2014; negative $118,046 in 2015; and negative $27,401 in 2016. Johnson‘s average adjusted gross annual income for those years was negative $50,972.
[¶ 12] Johnson‘s tax returns also included Schedule F “Profit or Loss From Farming” showing Johnson‘s profits and losses as follows: profit of $42,005 in 2012; profit of $36,550 in 2013; loss of $183,087 in 2014; profit of $23,450 in 2015; and profit of $53,276 in 2016. Johnson‘s average annual profit or loss from farming for those years was a loss of $5,561.
[¶ 13] Under the child support guidelines, an obligor is presumptively underemployed if the obligor‘s gross income from earnings is less than six-tenths of the average statewide earnings for persons with similar work history.
[¶ 14] The State submitted an exhibit published by Job Service of North Dakota showing the 2016 average wage for farmers and ranchers was $82,170. Six-tenths of the state‘s average earnings for farmers results in a gross annual income of $49,302. Using either his adjusted gross income or profits and losses from his tax returns, Johnson is underemployed under the child support guidelines.
[¶ 15] Rather than imputing Johnson‘s income as an underemployed farmer under
[¶ 16] If the tax returns do not reasonably reflect self-employment income, the guidelines require the use of profit and loss statements.
See
[¶ 17] Instead, the district court “considered all of the personal expenses as well as
B
[¶ 18] In determining Johnson‘s income and child support obligation, the district court found he had $4,003,495 in assets, including crops in storage of $691,895. The court stated “It is clear that Christopher has a significant amount of assets,” and referenced
[¶ 19] The child support guidelines provide that the amount of child support calculated under the guidelines “is presumed to be the correct amount.”
[¶ 20] Here, the district court discussed Johnson‘s assets and referenced
III
[¶ 21] Thompson argues the district court erred by not awarding her attorney‘s fees relating to the parties’ discovery disputes. Thompson argues
[¶ 22] A district court has broad discretion regarding discovery, and its discovery decisions will be reversed on appeal only if it has abused that discretion.
Bertsch v. Bertsch
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[¶ 23]
If the motion [to compel] is granted-or if the requested discovery is provided after the motion was filed-the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant‘s reasonable expenses incurred in making the motion, including attorney‘s fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain discovery without court action;
(ii) the opposing party‘s nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
[¶ 24] At the March 2017 hearing on the parties’ discovery motions, the district court granted Thompson‘s motion to compel and denied Johnson‘s motion for protective order. The court did not award Thompson attorney‘s fees; however, stating, “I‘m going to order both parties be responsible for their own attorney‘s fees. I believe it was within Mr. Johnson‘s right to contest this matter and to have the Court make a ruling as to what might be discoverable.” At the hearing on Thompson‘s order to show cause, the court found Johnson was not in contempt of its earlier discovery order. The court found Johnson did not willfully fail “to abide by the terms of discovery that the Court has set out previously.”
[¶ 25] Thompson argues the district court should have awarded her attorney‘s fees under
IV
[¶ 26] The amended judgment is affirmed in part, reversed in part, and remanded to allow the district court to calculate Johnson‘s child support obligation according to the child support guidelines.
[¶ 27] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Gerald W. VandeWalle, C.J.