Bertsch v. Dupay
Citation | 782 N.W.2d 42,2010 ND 87 |
Decision Date | 11 May 2010 |
Docket Number | No. 20090266.,20090266. |
Parties | Greta J. DUPAY f/k/a Greta J. Bertsch, n/k/a Greta J. Powell, Plaintiff and Appelleev.Matthew A. DUPAY, Defendant and Appellant. |
Court | North Dakota Supreme Court |
Aaron Curtis Vibeto, Minot, ND, for plaintiff and appellee.
Katy Marie Schaefer, Minot, ND, for defendant and appellant.
[¶ 1] Matthew A. Dupay appeals from an amended judgment denying in major part his motion to modify his child support obligation. We conclude the district court did not err in refusing to relieve Dupay of his obligation to pay child support to Greta J. Dupay, now known as Greta J. Powell (“Powell”), based on proceeds he received from a personal injury settlement in 2002. We affirm.
[¶ 2] Dupay and Powell were divorced in June 2002. Powell was granted primary custody 1 for the couple's child, and Dupay was ordered to pay $298 per month in child support. In April 2005, Powell moved to increase Dupay's child support obligation on the basis of his “substantial increase in income.” Powell alleged that she was aware Dupay “had received a very large personal injury settlement” shortly after the parties were divorced in 2002. Relying on Otterson v. Otterson, 1997 ND 232, ¶¶ 17-18, 571 N.W.2d 648, the district court concluded Dupay's net personal injury settlement could be included in his income for child support purposes, but explained:
[¶ 3] Powell chose the second option, and a hearing was held to receive evidence about the nature of the personal injury settlement award “and whether the award designated a breakdown of what the award was to cover (medical expenses, pain and suffering, lost past and future wages, etc.).” The record reflects the gross amount of the settlement was $600,000, and Dupay received a lump sum payment of $250,275.98 after deductions were made for a workers compensation lien and attorney fees and costs. The district court divided the $250,276 net personal injury settlement amount by 133, the number of months remaining in the child's minority, and found the $1,882 result “equals the amount of settlement money deemed to be available to [Dupay] on a monthly basis for the balance of [the child's] minority.” The court added $1,882 to Dupay's current monthly income and arrived at a guidelines monthly child support obligation of $588 beginning May 1, 2005. Dupay did not appeal the court's decision.
[¶ 4] In April 2009, Dupay moved to modify his child support obligation. Dupay contended his child support obligation should be lowered to $282 per month because “he is not currently employed and the windfall of his personal injury settlement award previously taken into account in calculating his child support obligation has ceased.” Dupay sought modification of his child support obligation “without taking into consideration my personal injury settlement award” because “I received the settlement in a lump sum in 2002; I am not receiving any settlement award now.” Following a hearing on the motion, the district court reduced Dupay's child support obligation by $64 per month to reflect Dupay's involuntary layoff from his employment. However, the court refused “to amend an earlier determination that the settlement would increase Dupay's income by $1,882.00 per month for 133 months.” The court reasoned:
The court set Dupay's child support obligation at $524 per month, and an amended judgment was entered to reflect the modification of child support.
[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Dupay's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.
[¶ 6] Dupay challenges the district court's refusal to relieve him of his obligation to pay child support based on the proceeds he received from the 2002 personal injury settlement.
[¶ 7] “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.” Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. Under N.D.C.C. § 14-09-08.4(4), if a prior child support order was entered at least one year before the motion to modify, the district court must apply the child support guidelines and order support in the presumptively correct amount, unless the presumption is rebutted. See Oien v. Oien, 2005 ND 205, ¶ 7, 706 N.W.2d 81. A party seeking amendment or modification under N.D.C.C. § 14-09-08.4 has the burden of proving the existing level of support does not conform to the guidelines. Oien, at ¶ 8. If the district court fails to comply with the child support guidelines in determining an obligor's child support obligation, the court errs as a matter of law. Verhey v. McKenzie, 2009 ND 35, ¶ 5, 763 N.W.2d 113.
[¶ 8] Powell argued that principles of res judicata bar Dupay from challenging the district court's unappealed 2005 decision that the lump sum personal injury settlement would be “deemed” available to Dupay in the amount of $1,882 per month for 133 months. We have noted that “[c]hild support orders are given only ‘limited finality,’ ” and therefore, “res judicata ordinarily will not prevent reexamination of a child support order.” Zarrett v. Zarrett, 1998 ND 49, ¶ 8, 574 N.W.2d 855 (internal citation omitted). Although the district court mentioned Powell's res judicata argument in its decision, the court did not base its ruling on res judicata. Rather, the court reaffirmed the earlier 2005 decision and ruled the $1,882 per month would continue to be considered income in calculating child support because “Dupay continues to receive benefits from the personal injury settlement.”
[¶ 9] Under the child support guidelines' broad definition of gross income in N.D. Admin. Code § 75-02-04.1-01(5), proceeds from a personal injury settlement must be considered in calculating the obligor's income for child support purposes. See Otterson, 1997 ND 232, ¶¶ 16, 17, 20, 571 N.W.2d 648; see also Berge v. Berge, 2006 ND 46, ¶ 13, 710 N.W.2d 417. Although this Court in Otterson did not address allocation of the proceeds of a lump sum personal injury settlement for child support purposes, other courts have addressed the question. See G. Rosten, Annot., Consideration of obligor's personal-injury recovery or settlement in fixing alimony or child support, 59 A.L.R.5th 489, 525-27 (1998). As the court noted in In re State and Taylor, 153 N.H. 700, 904 A.2d 619, 625 (2006), “no court holds that trial courts may not prospectively allocate settlement proceeds to calculate monthly child support obligations.”
[¶ 10] In Mehne v. Hess, 4 Neb.App. 935, 553 N.W.2d 482 (1996), the Nebraska Court of Appeals approved the method the district court used in this case to allocate the settlement proceeds over the child's minority. In Hess, at 484, a child support obligor received a net personal injury settlement award of $209,401, and the trial court had found that only the income generated by applying a hypothetical interest rate...
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