Martiré v. Martiré

Decision Date15 March 2016
Docket NumberNo. 20150139.,20150139.
Citation876 N.W.2d 727
Parties Michael P. MARTIRÉ, Plaintiff and Appellee v. Sandra Hendricksen MARTIRÉ, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Rodney E. Pagel, Bismarck, N.D., for plaintiff and appellee.

Joshua M. Feneis (argued) and Krista L. Andrews (on brief), Fargo, N.D., for defendant and appellant.

McEVERS, Justice.

[¶ 1] Sandra Hendricksen Martiré appeals from an amended divorce judgment modifying Michael Martiré's child support obligation and leaving unaltered his spousal support obligation. We conclude the district court did not err in refusing to modify Martiré's spousal support obligation. We further conclude the court failed to follow the Child Support Guidelines in setting Martiré's child support obligation. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶ 2] This is a continuation of "contentious" divorce proceedings between parties who "accumulated significant assets during their marriage." Martiré v. Martiré, 2012 ND 197, ¶¶ 2, 3, 822 N.W.2d 450

. The parties were divorced in 2010 after a nearly 20–year marriage and they were awarded joint primary residential responsibility for their two sons. Id. Hendricksen Martiré was awarded primary residential responsibility for their daughter. Id. at ¶ 3. Martiré was ordered to pay child support for the children in the amount of $6,127 per month and spousal support to Hendricksen Martiré in the amount of $5,000 per month until she either dies, remarries or attains the age of 65, whichever occurs first. Id. Martiré was awarded $2,027,416 of the net marital estate and Hendricksen Martiré was awarded $2,033,676 of the net marital estate. Id. at ¶ 3. This Court affirmed the district court's decision on joint primary residential responsibility and related divorce issues in Martiré, at ¶¶ 1, 34. The parties have filed numerous motions since then, resulting in two modifications of child support, but those orders were not appealed.

[¶ 3] In July 2014, Martiré moved to modify his child support obligation after the second of the parties' children entitled to support graduated from high school. Hendricksen Martiré responded with her own motion to modify child support, and claimed Martiré failed to comply with several of his court-ordered obligations. Following a hearing, the district court, after offsetting Hendricksen Martiré's child support obligation from Martiré's child support obligation, ordered Martiré to pay $2,314 per month for the remaining child entitled to support. The court refused to modify Martiré's spousal support obligation. The court also resolved numerous other motions that are not challenged in this appeal.

II

[¶ 4] Hendricksen Martiré argues the district court erred in refusing to modify her spousal support award.

[¶ 5] Because of the copious motions filed by the parties in this case, the district court requested an "identification of motions to be resolved" at the December 2014 hearing. In Hendricksen Martiré's six-page response to the request, she informed the court:

Sandra intends to bring an additional Motion asking for consideration of additional issues at the hearing on December 19, 2014 related to the following:
a. Correction of past errors in support awards based on recent income information not provided by Michael until September 24, 2014 which shows that the amount of support awards made to Sandra for the past 6 years have been grossly mistaken because the court has relied on income figures for Michael that have been grossly understated.

However, Hendricksen Martiré did not file a formal motion to modify spousal support. The court in its decision did not address spousal support, except to note "[t]here having been no motion filed by Sandra seeking to amend or modify spousal support, her verbal request is denied."

[¶ 6] Hendricksen Martiré argues she presented sufficient documentation for the district court to consider her request for modification of spousal support a "motion" under N.D.R.Ct. 3.2 and to rule on the merits. We disagree. First, N.D.R.Ct. 3.2(a)(1) addresses motions and provides in part: "Notice must be served and filed with the motion." There was no notice provided or motion made to modify spousal support. Second, the register of actions in this case consists of hundreds of filed documents since the original divorce. When a litigant leads the court to believe a motion will be filed but the motion is not filed, it is patently unreasonable to suggest that the court be faulted for failing to divine from voluminous documents or a verbal request whether a motion was brought. The court did not err in refusing to address spousal support.

III

[¶ 7] Hendricksen Martiré argues the district court made several errors in calculating Martiré's child support obligation.

[¶ 8] In Bye v. Robinette, 2015 ND 276, ¶ 4, 871 N.W.2d 432

, this Court explained:

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. A court errs as a matter of law if it does not comply with the requirements of the child support guidelines. As a matter of law, the district court must clearly set forth how it arrived at the amount of income and level of support.

(quoting Krueger v. Krueger, 2011 ND 134, ¶ 19, 800 N.W.2d 296

). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Wilson v. Wilson, 2014 ND 199, ¶ 12, 855 N.W.2d 105.

[¶ 9] The original divorce decree ordered Martiré to pay $6,127 per month in child support for three children. See Martiré, 2012 ND 197, ¶¶ 3, 21–24, 822 N.W.2d 450

. This amount was an upward deviation from the presumptive amount of $4,250 per month under the Child Support Guidelines in effect at the time. Id. at ¶ 21. The district court arrived at the child support amount by applying a 34 percent multiplier advocated by Hendricksen Martiré to Martiré's $18,022 net monthly income, and we affirmed the child support award. Id. at ¶¶ 23, 24.

[¶ 10] In August 2011, the same district court judge who presided over the divorce trial modified Martiré's child support obligation. The court found Martiré's net monthly income was 1.238 times the $12,500 maximum figure under the guidelines and multiplied the maximum support amount for two children by 1.238 to arrive at an obligation of $4,386 per month. The court found Hendricksen Martiré was underemployed, imputed income to her in an amount equal to one hundred sixty-seven times the hourly federal minimum wage, and offset that amount to arrive at a monthly child support obligation for Martiré of $2,971. There was no appeal. In June 2012, a different district court judge, now retired, again modified child support. The court found Martiré's monthly net income had increased to 1.638 times the $12,500 maximum figure in the guidelines, and after multiplying 1.638 by the presumptive guideline amount, arrived at an obligation of $5,803 per month. The court imputed income to Hendricksen Martiré based on six-tenths of the mean annual wage for a medical clinic manager in North Dakota. Offsetting Hendricksen Martiré's monthly child support amount, the court ordered Martiré to pay $3,876 per month for child support for the two children. This order was not appealed.

[¶ 11] In this case, a different district court judge again used the 1.638 multiplier because Martiré's net monthly income continued to exceed the $12,500 monthly net income maximum under the Child Support Guidelines in effect at the time. The court reasoned:

Both parties have made various motions asking this Court to amend the child support obligations. Neither party disputes that Michael's net monthly income exceeds the $12,500 monthly net income maximum provided by the Child Support Guidelines. His net income is also three times greater than Sandra's, both of these factors being a consideration under North Dakota's Child Support Guidelines to deviate from the presumptively correct amount provided by the Guidelines. (See N.D.A.C. § 75–02–04.1–09

). The history [o]f this case is that the Trial Court determined that there was a preponderance of evidence to justify a deviation from the guidelines and the use of a multiplier of 1.638 as

applied to Michael's income to establish an appropriate child support obligation. This determination of Michael's child support obligation has already been upheld by the North Dakota Supreme Court.
....
This court affirms and agrees with the 1.638 multiplier used by Judge Jorgenson and which was never appealed. Applying the multiplier to the presumptive child support obligation as provided by the guidelines results in Michael's child support obligation being $3,433.00 ($2,102 x 1.638 = $3,433).

[¶ 12] The district court imputed income to Hendricksen Martiré based on six-tenths of the mean annual wage for speech-language pathologists in North Dakota. After offsetting her monthly child support obligation, the court found Martiré had a $2,314 monthly child support obligation for one child. Effective September 1, 2015, N.D. Admin. Code §§ 75–02–04.1–09

and 75–02–04.1–10 were amended to double the $12,500 monthly net maximum to $25,000 and to provide that $3,500 is the presumptive amount of child support for this amount of monthly net income. On review we apply the Child Support Guidelines in effect at the time of the court's decision. See Verhey v. McKenzie, 2009 ND 35, ¶ 5 n. 1, 763 N.W.2d 113.

A

[¶ 13] Hendricksen Martiré argues the district court erred in determining Martiré's income and in applying a child support multiplier of 1.638. She contends the multiplier used by the court "should be much higher," and suggests the multiplier should have been 2.56.

[¶ 14] Under the Child...

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