Berg v. Ullman ex rel. Ullman, 970309

• Decision Date: 08 April 1998
• Docket Number: No. 970309,970309
• Citation: 576 N.W.2d 218
• Parties: Derek W. BERG, Plaintiff and Appellee, v. Misty ULLMAN, ex rel. Peter M. ULLMAN Defendant and Appellant. Civil
• Court: North Dakota Supreme Court

Page 218

576 N.W.2d 218

1998 ND 74

Derek W. BERG, Plaintiff and Appellee, v. Misty ULLMAN, ex rel. Peter M. ULLMAN Defendant and Appellant.

Civil No. 970309.

Supreme Court of North Dakota.

April 8, 1998.

Craig M. Richie of Richie & Associates, Fargo, for defendant and appellant.

Maureen Holman of Serklund, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, for plaintiff and appellee.

MESCHKE, Justice.

¶1 Misty Ullman appealed an order denying her motion to increase Derek Berg's support for their child, Peter Michael. We affirm in part, reverse in part, and remand for complete development of Derek's income and for correct application of the law imputing income to an underemployed parent.

¶2 Peter was born December 2, 1994, to Misty and Derek while they were unmarried high school students. The director of social services sued for Peter in April 1995 to establish Derek's paternity and his support duty. A judgment was entered March 20, 1996, declaring Derek to be Peter's natural father and ordering Derek to pay monthly child support. Because Derek was still in high school and newly employed part-time at minimum wage at a pizza franchise, Derek's support obligation was set at $50 monthly and Derek was required to pay $10 monthly on a $485 arrearage for the ten months from April 1995 through January 1996. Apparently anticipating Derek's full-time employment after his high school graduation in May 1996, the judgment directed re-assessment of Derek's "ongoing child support obligation in light of any material change in [his] ability to pay...."

¶3 After a June hearing, a judicial referee found "a material change in [Derek's] circumstances ... based upon the fact that [he] has now graduated from high school;" Derek resides with his parents and pays $50 per month in rent; and he "suffers from no disabilities and is able to earn a full-time, minimum wage income of at least ... ($625.00) per month in take-home pay." Despite the direction in N.D.Admin.C. 75-02-04.1-02(10) that "[e]ach child support order must include a statement of ... how that net income was determined," the referee's order did not show how Derek's monthly net income was found to be $625. However, neither side sought review and the order became final. From his $625 monthly income, the referee ordered Derek to pay $102 child support.

¶4 On February 25, 1997, Derek sued to clarify and enforce his "right of reasonable visitation" in the paternity judgment. On May 19, 1997, while settlement of visitation was pending, Misty moved "for an increase in [Derek's] child support obligation on the grounds that he is underemployed." Her affidavit alleged Derek "is grossly underemployed" because she had "reason to believe from North Dakota Job Service that the average pizza delivery person makes significantly more money than [Derek] is making at this time."

¶5 Derek's affidavit disputed "that pizza delivery persons in Fargo earn more than minimum wage." To evidence his earnings, Derek attached a single two-week pay stub showing gross year-to-date wages through June 29, 1997 of $4,125.42. Derek insisted he "cannot afford to pay any additional amount in child support at this time" because "my regular monthly expenses already exceed my income." At "an average of $317 per pay period" for 13 two-week pay periods until then, Derek "anticipated annual income of $8,250," less taxes of $880, for a net annual income of $7,370. Dividing that by 12 for a net monthly income of $614, Derek said he was earning "only slightly less than the amount imputed to me in the last order."

¶6 At an August 1997 hearing, Derek testified he was age twenty, had finished high school in 1996, and had worked as a delivery driver and a pizza maker for "pretty close to two years." He had not "looked for other employment" "[b]ecause I believe it's a good enough job." He agreed he had not been working full time, but he said, "I'm doing pretty close to full time." He had not "looked for any jobs where you could find employment full time" "because I'll be starting school this fall." He agreed "there would have been nothing keeping [him] from getting a full-time job" if he began school at Northwest Technical College, but he felt it "would be very hard." He admitted applying for college after Misty moved to increase support.

¶7 Derek testified to purchasing a 1990 Chrysler LeBaron Convertible in June 1997, and to obligating himself for $118 a month for two years "to fix up my car." He said he had no other source of income besides his wages and tips. His last pay stub showed $38.75 in tips for that two-week period, he agreed, but when asked "how much do you normally make in each pay period for tips," he had "no idea."

¶8 Misty's counsel argued for more income to be imputed to Derek than what he was earning:

This man is making--has chosen by his own admission to work part time. He has not looked for other jobs.... He's worked less than 40 hours a week. He thinks it's a pretty good job. He's making--he's paying I think $108 a month for the support of his child. He's had money for buying another car. He's had money obviously to do what he wishes to do, live in an apartment, live away from home. He now says he's going to go back to school.... [H]e never thought about doing that until after these motions were made ... A high school graduate can do more than work part time delivering or making pizzas.

... the statute makes it very difficult to prove but under the Wage and Benefit Survey, which is attached to this, it states and it shows what an average of a person would make making pizzas--I'm sorry, being a delivery person if he can deliver pizzas, which I don't think he's being totally forthright in what he makes in tips. I think he probably does a lot better than that in his tips, and that's up to the Court to decide. If he--an average high of what ... he'd be making 77 percent of what he would be making in--by way of what other delivery people make. Making four seventy-five when he could make five twenty-two and six seventeen even at the minimum and that's not being--that's not asking for a lot for him to do that.

¶9 Derek's counsel argued, like she did in this court, Derek was earning "close to" minimum wage so no more should be imputed. For example:

The guidelines set forth when you impute income and they decide it, that I think if you impute income at the federal minimum wage $102 a month is all you can expect in child support.

...

The guidelines require that people earning significantly less in order to impute income. There's no testimony here that he is earning significantly less.

Unfortunately, the court blindly accepted this argument:

... we're already making him a 40-hour-a-week pizza delivery guy at minimum wage so I think it's a misstatement of the facts to talk about him in a part-time capacity when it's my understanding that the child support that's been imputed to him is based on a 40-hour week minimum wage, right?

Haltingly, Misty's counsel tried to argue otherwise:

... So giving him the benefit of the doubt, he's still choosing to work part time at a minimum wage job, and he has for over two years, instead of trying to find something else.

... when he came in the last time and playing, quote unquote, the game with the Court he was working only working part time. They then argued at that juncture he hasn't had the money because he's only working part time.

¶10 But, mainly, Misty's counsel argued Derek had abilities to earn more:

... My position is this: He is underemployed. He has the ability to do a heck of a lot better than to be pizza delivery guy for two years, whether it be part time or almost full time, and if the Court awarded to his abilities, which this statute is intended for, he would then be in a position where I think you would find that he would able to go and do delivery work. And if it's delivery work delivering pianos or delivering furniture, that's what this chart shows. He certainly has that ability. There are other things other than delivering pizzas .... even taking into consideration that his tips may be low and you may not buy that, that he's undoubtedly pocketing more money than what he says, it appears that he could certainly do a lot better. It's been two years he hasn't found a better job.

¶11 The trial court was troubled, but felt it had no way to impute greater earnings to Derek:

... I can't impute skills to him that he doesn't have right now. He's a low skilled laborer and I'm satisfied he can't be very proud of the fact that he only pays $102 a month for child support. That can't be something that he's proud of. And I'm hopeful that that's not something that he wants to continue for very much longer in the future. But I certainly have no basis on which to impute a higher child support amount to him. The Court imputed half of that amount to him while he was in high school. And after he graduated from high school, just about a year ago, and got a job working at Domino's the figure was raised to 102. And, as I mentioned earlier, that's imputing a full 40-hour week to him. Now he could be working two jobs. He doesn't elect to do that. I'm satisfied he could be making more money, but I don't have the grid available. I don't have the evidence in front of me that would allow me to plug him into something higher than where he's at.

The court held "there is no basis to impute income in addition to the income imputed by the amended judgment," and refused to increase Derek's child support.

¶12 On appeal, Misty contends the trial court erred in deciding Derek "is not underemployed ... when he willfully chooses to work part-time at a minimum wage job that pays significantly less than the community average when he could make significantly more than minimum wage if he worked full-time." She argues:

... According to the Fargo Wage & Benefit Survey of 1996 published by Job Service North Dakota presented as evidence by [Misty] at the trial, the average...