Bernhardt v. Bernhardt
Decision Date | 22 April 1997 |
Docket Number | No. 960205,960205 |
Citation | 561 N.W.2d 656 |
Parties | Lana K. BERNHARDT, Plaintiff and Appellant, v. Edward BERNHARDT, Defendant and Appellee. Civil |
Court | North Dakota Supreme Court |
Arnold V. Fleck of Wheeler Wolf, Bismarck, for Plaintiff and Appellant.
Rick Maixner of Schmitz, Moench & Schmidt, Bismarck, for Defendant and Appellee.
¶1 In this child support case, we reverse and remand because the trial court made no finding of disability and failed to impute income as otherwise required, failed to award increased support because of an erroneous view of the law, and made other errors acknowledged by the parties.
¶2 In the 1983 divorce, the district court awarded Lana Bernhardt custody of their two minor children. The court ordered Edward Bernhardt to pay $150 per month in child support. At that time, he was employed as a civil service aircraft mechanic and was a member of the North Dakota National Guard. In 1995, he suffered a mild stroke and was diagnosed with cryoglobulinemia, making him sensitive to extreme cold and sunlight. Two physicians examined Edward Bernhardt and declared him disabled. On February 3, 1996, he began receiving civil service retirement disability benefits.
¶3 On October 10, 1995, Lana Bernhardt moved to modify child support. The parties do not dispute the district court separately calculating child support on a "pre-disability" and "post-disability" basis. The district court calculated the "post-disability" child support based on Edward Bernhardt's actual retirement income.
¶4 Lana Bernhardt appeals from the June 6, 1996, fourth amended judgment in Burleigh County District Court. She claims the district court erred in not imputing income to Edward Bernhardt in determining "post-disability" obligation. She also claims the court erred in not allowing an upward deviation from the guidelines for children older than eleven and that this error would apply to both "pre-disability" and "post-disability" calculations.
¶5 The district court had jurisdiction under N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. Art. VI, § 6, and N.D.C.C. § 28-27-01.
¶6 "A trial court's findings on a motion to modify child support will not be rejected on appeal unless they are clearly erroneous." Shaver v. Kopp, 545 N.W.2d 170, 174 (N.D.1996); Nelson v. Nelson, 547 N.W.2d 741, 743 (N.D.1996); N.D.R.Civ.P. 52(a). "[A] finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made." Shaver; Nelson.
¶7 We are asked to address the following issues: (1) whether the district court erred in not imputing Edward Bernhardt's income in calculating child support; (2) whether the district court erred in limiting the child support award to "necessities"; (3) whether the district court erred in failing to consider supplemental disability benefits for which Edward Bernhardt may have been eligible; and (4) whether the district court erred in calculating the amount deducted from Edward Bernhardt's income for projected medical expenses.
¶8 With exceptions, under N.D. Admin. Code § 75-02-04.1-07(3):
There is no dispute in this case that subdivision (a) would yield the greatest amount.
¶9 Under N.D. Admin. Code § 75-02-04.1-07(4)(b), however, income can be imputed at an amount less than 167 times the hourly federal minimum wage if "[t]he obligor suffers from a disability sufficient in severity to reasonably preclude the obligor from gainful employment." The burden of proof is on the obligor to show the "disability [is] sufficient in severity to reasonably preclude" employment. N.D. Admin. Code § 75-02-04.1-07(4)(b); see also Schleicher v. Schleicher, 551 N.W.2d 766, 769 (N.D.1996) (). Under N.D. Admin. Code § 75-02-04.1-07(4), gross income may be imputed at an amount less than required under N.D. Admin. Code § 75-02-04.1-07(3). The use of the word "may" is permissive and indicates it is a matter of discretion. Matter of Adoption of K.S.H., 442 N.W.2d 417, 420 (N.D.1989). "A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner." Binder v. Binder, 557 N.W.2d 738, 740 (N.D.1996).
¶10 Although Lana Bernhardt raised the issue of imputing income, the district court did not make findings on Edward's disability. Because the factual findings of the district court are insufficient for us to conclude the court found a "disability" for purposes of imputing income, we reverse and remand for findings on this issue. 1
¶11 Under N.D. Admin. Code § 75-02-04.1-09(2), the amount of child support under the guidelines may be increased if:
"[it] is in the best interest of the supported children and:
....
require an increase.
The district court made the following findings:
The court's findings on increased need are findings of fact that will not be disturbed unless those findings are clearly erroneous. Hendrickson v. Hendrickson, 553 N.W.2d 215, 219 (N.D.1996). " 'A finding is clearly erroneous if ... it was induced by an erroneous view of the law.' " Wolf v. Wolf, 557 N.W.2d 742, 744 (N.D.1996) (quoting Wilhelm v. Wilhelm, 543 N.W.2d 488, 489 (N.D.1996)).
¶12 We have stated " 'appropriate needs' are not limited to a 'subsistence level of support,' but can also be based on [the child's] standard of living." Perala v. Carlson 520 N.W.2d 839, 842 (N.D.1994). We have said "the 'needs' of a child in a family with substantial income are more...
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