Burrell v. Burrell, 10785

• Decision Date: 03 January 1985
• Docket Number: No. 10785,10785
• Citation: 359 N.W.2d 381
• Parties: Steven L. BURRELL, Plaintiff and Appellant, v. Jayne Renee BURRELL, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 381

359 N.W.2d 381

Steven L. BURRELL, Plaintiff and Appellant, v. Jayne Renee BURRELL, Defendant and Appellee.

Civ. No. 10785.

Supreme Court of North Dakota.

Jan. 3, 1985.

Charles L. Chapman of Chapman & Chapman, Bismarck, for plaintiff and appellant.

Sheldon A. Smith, Bismarck, for defendant and appellee.

VANDE WALLE, Justice.

Steven Burrell appealed from the district court's order denying Steven's motion for modification of his financial obligation for child and spousal support under a divorce judgment. We affirm.

Steven L. Burrell and Jayne Renee Burrell were granted a divorce by the district court of Burleigh County. Trial before the district court occurred on April 17, 1984, and judgment was entered on May 16, 1984. The divorce judgment provided, in relevant part, that Steven was to pay $550 per month in child support, $200 per month as property-settlement payments, and maintain life and health insurance on the two minor children.

On May 23, 1984, Steven Burrell filed a motion for modification of the required payments under the divorce decree. Steven's affidavit in support of his motion indicated that on May 16, 1984, he was laid off from his job as a pipefitter due to lack of work. Steven contended that he had sought other employment but had not been successful. Steven claimed that his monthly income was currently $688 in unemployment benefits. At the time of the divorce, the trial court determined that Steven's annual income for 1982 was $40,000 and it based Steven's support obligations upon the $40,000-income figure. Steven claimed that due to his being unemployed and the resulting change in his income, he could not possibly make the monthly payment of $750 for child support and property-division payments plus $230 for life and health insurance required by the divorce decree. Steven contended that the trial court should modify the support obligations due to a substantial change in circumstances. Specifically, Steven requested the trial court to reduce the amount of the monthly child-support payments and to suspend the property-division payments during the period of his unemployment.

The trial court denied Steven's motion with a one-sentence statement, "The plaintiff's motion for modification of the judgment is hereby denied." ¹ Steven Burrell was subsequently subjected to a contempt hearing for failure to pay child support. The referee to whom the matter was referred determined that Steven should not be found in civil contempt because Steven did not have the ability to pay the full amount of his child-support obligation. Steven was required to pay $100 per month with the balance of the support obligation accruing as an arrearage.

Steven argues on appeal that the trial court's denial of his motion to modify and reduce child support was a clearly erroneous finding of fact.

It is well established in North Dakota that courts invested with the power to grant divorces and award child-support money have the power to change or modify the amount to be paid or the method by which it is paid whenever it is shown that the circumstances of the parties have materially changed. Skoglund v. Skoglund, 333 N.W.2d 795 (N.D.1983); Nygord v. Dietz, 332 N.W.2d 708 (N.D.1983); Corbin v. Corbin, 288 N.W.2d 61 (N.D.1980). A significant factor in a proceeding to modify child-support payments is evidence of a change in the financial circumstances of either party to the divorce. Skoglund v. Skoglund, supra; Corbin v. Corbin, supra; Bridgeford v. Bridgeford, 281 N.W.2d 583 (N.D.1979).

The trial court, in considering what amount of child support must be paid, focuses on how the changed circumstances affect the financial needs of the supporting spouse and his or her ability to pay, as well as on the needs of the children and the dependent spouse. Corbin v. Corbin, supra. The court must attempt to balance the needs of the children with the supporting parent's ability to pay. Skoglund, supra; Kostelecky v. Kostelecky, 251 N.W.2d 400 (N.D.1977). We have stated that the ability to pay support is not necessarily determined solely on the basis of income earned. The court must consider a party's net worth, including the extent of his physical assets and his earning ability as demonstrated by past income. Skoglund v. Skoglund, supra.

Before a trial court can determine whether there has been a material change in circumstances that will justify a modification of payments under a divorce decree, the court must conduct a fact-finding inquiry. Lipp v. Lipp, 355 N.W.2d 817 (N.D.1984); Corbin v. Corbin, supra; Becker v. Becker, 262 N.W.2d 478 (N.D.1978). The facts considered by the trial court in making a determination with regard to child support are findings of fact subject to Rule 52(a), N.D.R.Civ.P. A finding of fact by the trial court concerning child support is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Rule 52(a), N.D.R.Civ.P.; Jondahl v. Jondahl, 344 N.W.2d 63 (N.D.1984); VanRosendale v. VanRosendale, 342 N.W.2d 209 (N.D.1983).

Steven specifically contends that our decision in Hoster v. Hoster, 216 N.W.2d 698 (N.D.1974), is applicable to his case. He correctly points out that in Hoster we reduced child-support payments because the supporting spouse was financially unable to comply with the terms of the divorce decree due to the supporting spouse's reduced income.

After reviewing the facts of Hoster, we note that the decrease in income was somewhat permanent in nature, or at least projected by both parties to be of long duration. The trial court had granted the parties a divorce in June 1973. The supporting spouse had a 40-percent reduction in income approximately...