Corbin v. Corbin, 9672
| Decision Date | 24 January 1980 |
| Docket Number | No. 9672,9672 |
| Citation | 288 N.W.2d 61 |
| Parties | LeAnn CORBIN, Plaintiff and Appellant, v. Donald CORBIN, Defendant and Appellee. Civ. |
| Court | North Dakota Supreme Court |
John J. Mahoney, Center, for plaintiff and appellant.
William F. Lindell, Washburn, for defendant and appellee.
This is an appeal from an order of the McLean County District Court which affirmed the findings and recommendations of the district court's referee pertaining to the modification of the defendant's child support payments. The order is modified with respect to the child support payments which are in arrears, but is otherwise affirmed.
The plaintiff, LeAnn Corbin, and the defendant, Donald Corbin, were married in Roseglen, North Dakota, on October 11, 1959. Five children were born of the marriage: Dawn, born June 29, 1960; Robert, born July 6, 1961; Mark, born March 21, 1963; Terri, born October 15, 1965; and Scott, born May 8, 1971. The parties were divorced and judgment was entered in McLean County District Court on November 6, 1974. The judgment provided, in pertinent part:
The child support payments were then regularly made until the parties' oldest child, Dawn, became eighteen years of age on June 29, 1978. Thereafter, Donald reduced his monthly payment by $75.00, interpreting the $375 per month child support provision to mean that he should pay $75 per month for each of the five minor children. He continued these reduced payments throughout the remainder of 1978 and into 1979, until, on May 9, 1979, he made a motion in the district court for an order modifying the judgment and decree. In his motion, he asked that the district court "clarify the fact that the support payments be reduced automatically $75.00 per child as each child becomes the age of eighteen years." Donald contended that this was the understanding of the parties at the time the divorce was granted and that the child support provision of the judgment was incorrectly stated. If the basis of his motion was that of mistake, he should have brought it pursuant to Rule 60(b) of the North Dakota Rules of Civil Procedure and within the time constraints provided for therein.
In response to Donald's motion, LeAnn filed an affidavit wherein she asserted that Donald wrongly interpreted the decree to provide $75 per minor child, and further that the child support payments were no longer adequate. She asked the district court to modify the support order so as to provide that Donald pay $175 per month for each minor child and for each child under the age of twenty-four who attends college. She also asked that Donald be required to pay the costs of medical, dental, orthodontic and optic care for the children.
A hearing was held before district court referee, Thomas McGurren, on May 24, 1979, and on May 31, he made the following recommendations:
On June 5, 1979, LeAnn requested that the referee's recommendations be reviewed. She contended that, based upon the rule enunciated in Cosgriff v. Cosgriff, 126 N.W.2d 131 (N.D.1964), the child support award of $375 per month was a lump-sum payment and, in the absence of a modification, this sum should continue to be paid until the youngest child reaches the age of majority. Therefore, the child support payments were in arrears in the amount of $75 per month from July of 1978 through May of 1979. Further, LeAnn contended that the evidence presented at the hearing did not warrant a reduction in Donald's child support payments, but instead, any modification should be in terms of an increase due to Donald's increased income.
Upon review, the district judge ordered that the findings and recommendations of the referee be affirmed, and it is from this order that LeAnn appeals to this court.
LeAnn has raised several issues on appeal, namely:
(1) In the absence of a court-ordered modification, did Donald have the authority to reduce his child support payments once the parties' oldest child reached the age of majority?
(2) Did the district court have the authority to retrospectively modify or cancel accrued, but unpaid, child support payments?
(3) Was there sufficient evidence presented at the modification hearing to show a material change of circumstances which would justify a reduction in child support payments?
Section 14-05-22 of the North Dakota Century Code provides, in pertinent part, that:
See § 14-05-24, N.D.C.C.
The trial court has continuing jurisdiction in divorce cases over matters pertaining to the custody, care and education of the minor children of the marriage. Muraskin v. Muraskin, 283 N.W.2d 140 (N.D.1979); Voskuil v. Voskuil, 256 N.W.2d 526 (N.D.1977); Goff v. Goff, 211 N.W.2d 850 (N.D.1973). It is well-established 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 the circumstances of the parties have materially changed. Schumacher v. Schumacher, 242 N.W.2d 136 (N.D.1976); Foster v. Nelson, 206 N.W.2d 649 (N.D.1973). However, when a divorced husband believes that there are valid reasons for a reduction in the amount of child support payments, it is not proper for him to use extrajudicial methods, take the matter into his own hands, and arbitrarily reduce the payments without first having made an application to the trial court for a modification of the previous order. Cosgriff v. Cosgriff, supra at 134. In the absence of a court-ordered modification, Donald had no authority to reduce his child support payments once the parties' oldest child reached the age of majority.
The award of child support in the instant case, which provided that Donald agreed to pay the sum of $375 per month for the support of his minor children, is similar to the award in Cosgriff, which provided that the divorced husband pay to his wife, as support for the minor children of the parties, the sum of $185 a month, payable on the first of each month.
In Cosgriff, the husband had taken it upon himself to reduce his support payments by one-fourth when one of the four children attained majority. This court held that where a decree provides for a lump-sum payment for support of a number of children, the support provision is not automatically reduced by one-fourth of such lump-sum payment when one of the four children reaches the age of majority. Cosgriff v. Cosgriff, supra at 134.
This court further stated that if the divorce decree had provided for a definite sum per child, as is often the case, the payment would automatically be reduced when each child reached majority. However, where the provision for child support payments is for a lump sum, as in the instant case, the better rule is that, in the absence of modification by the trial court, the lump sum remains payable until the youngest child reaches the age of majority. Id.
In light of the rule enunciated in Cosgriff, Donald's child support payments were in arrears in the amount of $75 per month from July 1, 1978 through June 1, 1979. The referee failed to consider whether or not these arrearages were presently payable and pursuant to his recommendations, which were affirmed by the district court, he modified or cancelled these accrued, but unpaid, child support payments. LeAnn contends that the district court had no authority to do so.
In support of this contention, LeAnn relies upon the holding of this court in Kinsella v. Kinsella, 181 N.W.2d 764 (N.D.1970), where we were faced with the issue of whether or not child support payments may be retrospectively modified or cancelled.
We recognized in Kinsella, supra at 770, that "(a) number of jurisdictions regard child support payments to be vested as they accrue, and retrospective modification or termination of such payments is not permitted."...
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