Whitmire v. Whitmire, 591 N.W.2d 126

Whitmire v. Whitmire

591 N.W.2d 126

N.D.

1999

Check Treatment

*1 deny judge may grant or new cessor

trial motion. judge A “must have

Id. at 1227. successor existing record to confidence

sufficient ease on a to resolve the fair

be able Moore,

intelligent 12 James Wm. basis.” Practice 63.05[6][a]

Moore’s Federal

(1998). judgе “If a is successor satisfied imposed perform or she cannot the duties

he the Federal Rules Civil Procedure case, particular

respect successor empowered to order a trial.” and must new

Id. Here, for the

[¶ 10] no reason substitution judges given and the been successor familiarity

judge certify did Thus, judge

record. the successor did not issuing comply with N.D.R.Civ.P. also, 214, 570 See fact, findings of conclusions N.W.2d 231. judgment. is reversed and the proceedings further

matter is remanded for opinion.

in accordance with this C.J., WALLE, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍YANDE MARING KAPSNER, JJ., RALPH R.

ERICKSON, Judge, District concur. ERICKSON, 13] RALPH R. J., SANDSTROM,

Judge, sitting in place of

disqualified. ND 56 WHITMIRE,

Burton L. Plaintiff Appellant, WHITMIRE,

Audree Defendant Appellee.

Civil No. 980257.

Supreme Court of North Dakota. 29, 1999.

March

As Amended *2 Severin, Severin, Ringsak

William C. & Bismarck, Morrow, ND, plaintiff ap- and pellant. Oliver, Kapsner Bakken

Leslie and Oli- ver, Bismarck, ND, appel- for dеfendant and lee.

MARING, Justice. (Whitmire) ap- Burton L. Whitmire pealed Judgment from Fourth Amended modifying awarding and attor- ney spouse, his former Audree Whit- (herein McLean, mire referred to as surname). imput- We hold the erred in ing income Whitmire from his residence awarding attоrney unsupported part, proper documentation. affirm in We part, pro- reverse in for further remand ceedings.

[¶ Whitmire and McLean were married together daughter had one marriage, parties their Sierra. The divorced in December аwarded primary physical custody of Sierra rea- sonable visitation for Whitmire. June requesting filed a Whitmire motion physical primary Sierra’s custody to himself. McLean resisted the motion, totally alleging ungrounded, proceed- fees for ings. July ap- On ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍guardian pointed a ad litem and declared it would consider McLean’s motion for later time. During March failed 1997 Whitmire Sierra to return from scheduled visitation and left state with her. On March order, 1997 the entered an based emergency brought by upon an Mc- Lean, custоdy awarding her exclusive Si- the state with erra. Whitmire returned to Sierra, Judgment plac- Second

entered a McLean and or- Sierra with strictly dering supervised visitation for Judgment Whitmire. The Second Amended provided parties responsible would ap- own Whitmire for their pealed from the Second Amended and, evidentiary hearing comply require- fails to had when it because no entry, this to its Court re ments of the Guidelines.... prior been held entirety judgment in its and re versed that a matter of the district court As proceеdings. Whitmire manded further clearly must set forth how arrived at the ¶ 23, Whitmire, ND *3 support. level amount of income and of Ullman, rel. ND Berg v. Ullman ex ¶74, 18, “A proper 576 N.W.2d 218. find evidentiary [¶4] At the conclusion of net income is essential a determi hearing, from the bench the trial court stated sup amount of child nation of correct “at going to consider port guidelines.” v. under the Schleicher time,” she could make a this but told McLean (N.D. Schleicher, 551 N.W.2d regard to that separate with issue. 1996). § N.D. Admin. Code 75-02-04.1- Third February On 02(10) support in requires “a child awarding custody entered of was obligor’s in clude a statement of the net supervised visitation Sierra to McLean ‘how income deter come and that net was for Whitmire. ” mined.’ Id. 26, 1998, McLean [¶ 5] On March filed 1,1998 hearing, [¶ At the June Whitmire 7] review of motion with the court McClusky purchased he a house support, of testified child reimbursement Sierra’s $3,500 during 1997 for it to his award of rented expenses, medical an per hearing, sister month. Whitmire testi- trial court ordered for $200 After a gave parents in fied later house to of a Fourth Amended he his Whitmire’s child it was not livable and he did not which the court increased because per responsible to want support obligation from month to be for the taxes on it. $250 per imputed Whitmire’s month continued The trial court income to $280 Whitmire of McClusky to child care amount per contribution of month for the house. $200 per The court also ordered month. $25 reimburse McLean for one-half

Whitmire to guide support Under the child [¶8] expenses of medical and awarded Sierra’s lines, upward impose the court can an devia $3,347 fees. Whitmire support if tion amount from scheduled appealed. obligor engaged “has an asset transac reducing purpose obligor’s tion of Support Child sup payment available for of income child [¶ Whitmire asserts port.” N.D. Admin. Code 75-02-04.1- by setting support erred the child amount 09(2)(h). Wagner Wagner, See also v. erroneously imputing income to him rental ¶ ND 579 N.W.2d 207. The trial apartment from a in his basement residence purchased found Whitmire court by purchased and also from a house Whit- McClusky house and soon thereafter trans Buchholz, McClusky. mire Buchholz parents, compensa title to his without ferred ¶¶ 11-12, 590 N.W.2d we implicitly The found tion for it. reviewing of reformulated our standard gratuitous transfer of house Whit- support: of child awards purpose reducing mire was for the his support purposes. child con income for We support determinations involve Child implicit finding subject clude questions of law which are to the clearly review, record evidence and is not erroneous. findings of fact de novo stаndard the trial court did not clearly We further conclude subject to which are erroneous imputing in review, its discretion in rental may, in abuse some limit- standard of house, McClusky areas, subject come to Whitmire from the ed matters of discretion upward resulting in an deviation from Whit- to the of discretion standard of re- abuse ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍obligation. view. A errs a matter law mire’s scheduled as imputed Construing unambiguous language The trial court also $350 of this together guidelines, monthly income from statute the relevant rental a basement impute we conclude court cannot apartment Whit- income in Whitmire’s residence. obligor’s in calculating from an homestead 1, 1998, hearing mire at the June he testified support purposes.1 income for child See Rei previously apart had rented the basement (N.D. Griffeth, necke v. 533 N.W.2d month, per ment in but his residence $350 1995). guidelines prevent obligor living his brother now there rent free being any part forced to lease all or receiving no income Whitmire was rental his residence. We the trial conсlude support guidelines from it. ex The child erred, imputed a matter as when pressly preclude imputing the court from rental Whitmire income from the basement obligor’s pur income from an homestead remand, apartment of his residence. On poses determining obligor’s sup *4 must monthly eliminate the $350 port obligation. language The relevant is imputed income from its calculations and re § found under N.D. Admin. Code 75-02- support determine Whitmire’s child obli (3): 04.1-09(2)(g) and gation. 2. presumption The that the amount of support child that would from result the Attorney Fees application chapter, except of this for 10] The trial court awarded [¶ Mc subsection, is the of this correct amount attorney $3,347 stating Lean fees of “[t]he only pre- if a child rebutted attorney fees and costs awarded include ponderance of the evidence establishes preparation in those incurred the guidelines that a from the is in deviation hearing fees and costs incurred after supported the best of the chil- interest in Supreme hearing Court this matter.” dren and: Whitmire claims the trial court was barred awarding attorney

from under fees the doc judicata, res trine of because the Second g. ability obligor, The increased of an 4, Amended entered on in- who is able to secure additionаl 1997, parties pay required the their own assets, provide come from child attorney fees. support; Judg 11] The [¶ Second Amended entirety by in ment was reversed its this may 3. Assets not be considered under appeal judg Court in Whitmire’s from that 2, g h of subdivisions subsection ¶ Whitmire, ment. 1997 ND 570 they: the extent explained Mahoney 231. We N.W.2d v. exempt a. Are under North Dakota ¶ 1997 ND 567 Mahoney, N.W.2d 47-18-01; Century Code section ... 206, judgment a reversed cannot serve as res N.D.C.C. 47-18-01 defines the homestead judicata: exemption: judica- judgment generally A no res has any рerson, The whether homestead by if it ta effect has been reversed an unmarried, residing in married or appellate appellate court. An reversal va upon state shall of the which consist land judgment parties cates the so that the are resides, dwelling the claimant and the placed position in the same as before house on that land which the dependent homestead judgment. An of the order on a resides, appurte- claimant with all its is reversed falls with the nances, improvеments other on and all judgment.... Bergstrom Berg [v. As land, the total not to exceed eighty thou- strom], 320 N.W.2d ^[119] at 122 [(N.D. value, 1982)], sand over explained, attorney dollars and above liens an award or or depends judgment. encumbrances both. fees and costs on If, however, obligor obligor’s 1. gross determining chooses to receive rent- income homestead, support obligation. al income his residence or See N.D. Admin. Code 75-02-04.1-01(5) (7), actually §§ received monies would constitute "in- and 75-02-04.1- any come from source” and would be includable fees, $2,500

Here, attorney- attorney and the award an award prior award of judicata complaining because will be overturned unless was not res not fees and costs underlying judg- affirmatively party on dependent establishes Mahоney Mahoney Mahoney, II. v. ment we reversed abused its discretion. 149, ¶ 38, An 567 N.W.2d 206. omitted). (citations Here Second attorney requires find specific award fees and, there- Judgment was reversed Amended ings supported parties’ evidence fore, judicata attor- res effect no Dyke needs. financial conditions and Van ney fee issue. (N.D.1995). 197, 203 Dyke, Van 538 N.W.2d Furthermore, brought McLean generally must attorney An award of court on the issue of upon which evidence the court occasion, wherein the court morе than ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍one reason can are determine expressly resolution issue reserved Rub, legitimate. able First Trust v. See requested a a later time. When Whitmire (N.D.1994); City 510 N.W.2d custody in June Davis, Lake v. 480 N.W.2d Devils requested attorney resisted the Sturdevant, (N.D.1992); Sturdevant v. July its (N.D.1982). 263, 269 specifically reserved time. a later When issue resolution accompanying affidavit was reversed the Second request *5 McLean’s for fees does hearing, evidentiary for lack of an McLean specific legal performed describe the services proceedings again attorney fees in spent performing or the amount time following the reversal. The the remand from Consequently, is no these services. there court, January hearing, 1998 trial the evidentiary upon basis which the court could deal with the аgain it would not then said legitimacy or determine the reasonableness bring a attorney but McLean could fee issue requested attorney these the Under attorney fees. The separate for motion circumstances, we conclude the trial court court, Third February attorney awarding abused its discretion in custody provi modified unsupported proper fees docu to McLean original Although the sions the decree. remand, Upon the court can re mentation. states, Judgment re “[t]he Third Amеnded attorney request legal consider the fee for specifically Judgment not mainder relating services to Wlhitmire’s June herein, modified shall stand as entered” change custody all motion for and for court, bench, expressly reserved the thereafter, proceedings occurring in this case attorney issue for later resolution. On sup providing presents McLean sufficient a filed motion re March given porting and Whitmire is documentation and questing of child medical review challenge to opportunity respond request expenses, for and she renewed request. attorney fees. [¶ The Fourth Amended 16] reversed, with case is remanded continuing

[¶ The trial 13] court Mc- directions the trial court reconsider jurisdiction regarding post- in divorce actions Sеe, request attorney fees Lean’s and recalcu- judgment e.g., matters. Whitehead (N.D.1983). Whitehead, late support obligation with- Whitmire’s child jurisdic imputing out rental income from retained Wbitmire’s We conclude the fees, tion to homestead. this case deаl legal relating to Whitmire’s June services part, part, [¶ Affirmed in reversed 17] and for all motion and remanded. occurring this ease thereafter. proceedings in WALLE, C.J., and [¶ 18] VANDE complains the 14] Wfiiitmirealso [¶ J., NEUMANN, concur. not trial court’s award of fees is HUNKE, [¶ MAURICE R. upon 19] “an breakdown” itemized GLASER, Judge, Surro- request and GERALD G. which could the court determine gate Judge, place sitting in of SAND- fair and A trial ed were reasonable. J., J., KAPSNER, STROM, disqualified. court has formulat- considerable discretion GLASER, Judge, concurring in Surrogate dissenting

part part. problem majority I have with the

opinion apparently because but, thing legally speaking, an-

said one did that

other. I refer the fact the trial attorney’s request rule on

declined to it not “properly

fees because considered

before me at time.” She went on

suggest that defendant “could make

separate regard if that issue

you concluding, want....” That is far from majority,

as does

“expressly reserved the fee issue contrary,

for later resolution.” On third ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ordered par- judgment required

amended which attorney’s pay

ties to their own judgment appealed

costs. not That question

became final of attor-

ney’s proceed- was raised in fourth

ing. When a final it is becomes subject except to retroactive revision present

limited circumstances not here. *6 Accordingly, I limit would consider- activity

ation question judg- place took after the third amended

ment was entered remand from the first

appeal in case. HUNKE, R. MAURICE

Judge, concurs.

1999 ND 62 SILVESAN,

Reed Petitioner Appellant, Dakota, Respondent North

STATE of Appellee.

Nos. 980330.

Supreme Court of North Dakota.