Devine v. Hennessee

Decision Date24 June 2014
Docket NumberNo. 20130347.,20130347.
Citation2014 ND 122,848 N.W.2d 679
PartiesRobert J. DEVINE, Plaintiff and Appellant v. Rebekah L. HENNESSEE, f/k/a Rebekah L. Devine, Defendant and Appellee.
CourtNorth Dakota Supreme Court


Jacey L. Johnston, Grand Forks, ND, for plaintiff and appellant; submitted on brief.

Sarah W. Gereszek, Grand Forks, ND, for defendant and appellee; submitted on brief.

VANDE WALLE, Chief Justice.

[¶ 1] Robert Devine appealed from a fifth amended judgment reducing the amount of child support his ex-wife, Rebekah Hennessee, is required to pay each month. We affirm the judgment.


[¶ 2] Devine and Hennessee were divorced in 2001. The parties have two minor children together. Both children were born in 1996. Devine and Hennessee were awarded joint legal custody of the children. Devine was granted primary residential responsibility of the children, subject to Hennessee's reasonable and liberal visitation rights. The original judgment has been amended several times. Under the fourth amended judgment, entered September 2011, Hennessee was ordered to pay $1,200 per month in child support. The amount was based on her income while she was serving in the United States Air Force. The amount was reduced due to travel expenses incurred for parenting time, as Hennessee was stationed at Ramstein Air Base in Germany.

[¶ 3] Hennessee was medically discharged from the Air Force in April 2013, and filed a motion to amend her child support obligations. Hennessee argued that, as a result of her discharge, her monthly income had decreased, thus warranting recalculation of her child support. Devine resisted the motion, and argued that Hennessee did not answer his discovery and production requests for information concerning her disability payments or documenting her inability to work.

[¶ 4] Prior to the motion hearing, Hennessee filed a request to testify telephonically from Tucson, Arizona, where she has been living since 2012. Hennessee claimed she did not have the financial means to travel from Tucson to Grand Forks for the hearing. Devine resisted Hennessee's motion. The court granted Hennessee's motion to appear telephonically. At the hearing, Hennessee testified she served in the Air Force for over eighteen years but that she was not currently employed. She testified that the training and experience she received in the Air Force does not transfer over to employment in the civilian sector.

[¶ 5] Hennessee testified she was medically discharged from the Air Force in April 2013. Hennessee explained she was medically discharged because she was diagnosed with major depression and borderline personality disorder. She also testified she underwent three ankle surgeries and was no longer able to complete the requisite physical training. Hennessee testified she is currently receiving $1,533 in retirement pay each month, and that her Veterans Affairs (“VA”) benefits were still being processed. Hennessee testified that once her VA benefits are processed, she will no longer receive her retirement pay and will instead only receive disability pay. Hennessee testified she did not know how much she would receive for disability pay or when the disability payments would commence. She testified the $1,533 she receives in retirement pay is her only source of income.

[¶ 6] Hennessee testified she is not looking for employment because she attends VA classes for depression, sees a therapist for depression and post traumatic stress disorder (“PTSD”), and sees a psychiatrist for cognitive behavior therapy. Hennessee also stated she was planning on starting school near her home in Tucson. She testified the GI Bill would cover her tuition and provide a housing allowance.

[¶ 7] On cross-examination, Hennessee testified she had not enrolled in school and had not signed up for the GI Bill. She testified that her therapy is about eight or nine hours a week. Hennessee stated she received Devine's discovery requests for a copy of her 2011 and 2012 tax returns, but that she did not provide him with a copy of either return. She testified that in her move from Germany back to the United States in April 2012, the documents were misplaced and are still in storage. Hennessee also testified she contacted the IRS for her 2011 and 2012 returns, but she has not received them yet. Hennessee admitted she did not provide Devine with any documentation to support her testimony that she was discharged for depression, borderline personality disorder and the three ankle surgeries. Hennessee testified she received the discovery request but did not produce any documents because she did not believe that Devine needed to know that information about her.

[¶ 8] Devine testified at the hearing in person. Devine stated he has custody of the two minor children, ages sixteen and seventeen. Devine testified he is an eighty-percent disabled veteran with acute anxiety, PTSD, and severe depression. Devine testified the disability rating has nothing to do with civilian employment. Devine also testified, based on his military experience, that the Air Force has a federal job code that provides a list of civilian occupations that veterans are qualified for after they leave the military. Devine stated that, as the minor children have gotten older, they have increased expenses from school activities and sports, car insurance, exchange programs, and various other costs.

[¶ 9] Following the hearing, the district court entered a memorandum opinion and order finding that Hennessee's income was drastically reduced through no fault of her own. The court determined her current income is $1,533 per month. The court found Devine failed to show that another amount should be imputed to Hennessee. The court also found that Devine did not bring a motion to compel Hennessee's disability and financial records that he sought in discovery. The court determined that, based on Hennessee's net yearly income of $18,396, the proper child support calculation was $416 per month.


[¶ 10] Devine argues the district court erred in modifying Hennessee's child support and impermissibly shifted the burden of proof to the non-moving party. This Court's review of a district court's child support determination is well-established. “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.” Schwalk v. Schwalk, 2014 ND 13, ¶ 8, 841 N.W.2d 767. “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.” Machart v. Machart, 2009 ND 208, ¶ 14, 776 N.W.2d 795.

[¶ 11] Section 14–09–08.4(4), N.D.C.C., provides that, if a child support order was entered at least one year before the filing of a motion for amendment, the district court must order the amendment of the child support order to conform with the amount required under the child support guidelines, “unless the presumption that the correct amount of child support would result from the application of the child support guidelines is rebutted.” “The party seeking 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.” Schwalk, 2014 ND 13, ¶ 9, 841 N.W.2d 767.

[¶ 12] Here, the fourth amended judgment was entered at least one year before Hennessee filed her motion for amendment. As the party seeking an amendment to the child support order, Hennessee had the burden of proving the existing level of support was not in accordance with the child support guidelines. The court was required to amend Hennessee's child support obligation if it did not conform with the proper amount as provided in the child support guidelines. See, e.g., Torgerson v. Torgerson, 2003 ND 150, ¶ 8, 669 N.W.2d 98.

[¶ 13] At the hearing, Hennessee testified that her income had decreased as a result of her discharge from the Air Force in 2013. Hennessee did not provide documentation of her discharge, current income, medical disability, or retirement pay. In support of her motion to amend, Hennessee included an affidavit and a proposed disability rating document from the VA, however, the document was never entered into evidence. As a result, the court could only rely on Hennessee's telephonic testimony and affidavit to determine her income.

[¶ 14] Based on this evidence, the court found Hennessee “is receiving service connected disability pay of $1,533 per month. The Plaintiff [Devine] has failed to show that another amount should be imputed to the Defendant [Hennessee]. When he got incomplete information from the Defendant he did not bring a motion to compel.” Devine argues the court, by these findings, shifted the burden to him to disprove Hennessee's income.

[¶ 15] We conclude the district court did not shift the burden of proof to Devine, the non-moving party, to show that the existing level of support did not conform with the guidelines. The court first placed the onus on Hennessee going forward to prove that her child support payments did not conform with the guidelines. It was only after the court accepted Hennessee's argument that her support obligations did not conform with the guidelines that the court reviewed and rejected Devine's arguments. Although the court determined Devine failed to rebut Hennessee's evidence, the court did not begin with the presumption that Hennessee's support was incongruous with the guidelines. We conclude the court did not improperly shift the burden of proof to Devine.


[¶ 16] Devine argues the district court erred in relying upon insufficient evidence or evidence not admitted at the hearing to determine Hennessee's income. This Court has previously stated that a proper finding of net income is essential to determine the correct amount of child...

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