Eberhardt v. Eberhardt

• Decision Date: 19 December 2003
• Docket Number: No. 20030065.,20030065.
• Citation: 672 N.W.2d 659,2003 ND 199
• Parties: Mary Ellen EBERHARDT, now known as Mary Ellen Vance, Plaintiff, Appellant and Cross-Appellee v. Danny Bill EBERHARDT, Defendant, Appellee and Cross-Appellant.
• Court: North Dakota Supreme Court

672 N.W.2d 659

2003 ND 199

Mary Ellen EBERHARDT, now known as Mary Ellen Vance, Plaintiff, Appellant and Cross-Appellee v. Danny Bill EBERHARDT, Defendant, Appellee and Cross-Appellant.

No. 20030065.

Supreme Court of North Dakota.

December 19, 2003.

Rehearing Denied January 14, 2004.

Jonathan T. Garaas, Garaas Law Firm, Fargo, for plaintiff, appellant, and cross-appellee.

Craig M. Richie, Richie & Associates, Fargo, for defendant, appellee, and cross-appellant.

MARING, Justice.

[¶ 1] Mary Ellen Eberhardt, now known as Mary Ellen Vance ("Vance"), has appealed from a post-divorce judgment order dated January 7, 2003, which was amended by a May 16, 2003 order. Danny Bill Eberhardt ("Eberhardt") has cross-appealed. We affirm.

[¶ 2] The parties' April 7, 2000, divorce judgment: (1) divided the parties' marital property and debts; (2) awarded each party physical custody of two of the parties' children; (3) granted each party reasonable visitation with the children not in that party's custody, and ordered Eberhardt's visitation with one child to be supervised; (4) fixed Vance's child support obligation at $200 per month, fixed Eberhardt's child support obligation at $751 per month, and ordered Eberhardt to pay child support of $551 per month, plus $50 per month toward an arrearage of $3,700.29; (5) required the parties to equally split all of the children's health care costs not covered by insurance; (6) ordered Eberhardt to pay $500 per month as spousal support for 36 months from January 1, 2000; (7) ordered Eberhardt to pay $2,000 to Vance for attorney fees "after the sale of the family home or within 180 days after entry of this Decree, whichever event occurs first;" and (8) required each party to "deliver any letters, bills of sales, documents, deeds, or perform any act necessary to give full effect to the Judgment of this Court within 30 days of the notice of entry of Judgment."

[¶ 3] On January 7, 2003, the trial court issued an order addressing several motions filed by both parties. The trial court found Eberhardt had not paid the $2,000 in attorney fees ordered in the divorce judgment and had not paid the $9,500 in spousal support due for June 2001 through December 2002. The court also found 6. Testimony regarding Defendant's income from his employment ... is inconsistent with his 2001 income tax return. However, it is unclear whether Defendant's testimony regarding his income related to the year 2000, for which his 2001 income tax return would accurately reflect, or to the year 2002.

....

9. Defendant has spent money on medical bills not covered by insurance for the parties' children.... Upon the Court's own review of the medical bills, Defendant spent $7,708.37 on medical expenses that were not covered by insurance. Plaintiff's responsibility, therefore, is $3,854.19.

10. Both attorneys have contributed to the convoluted and drawn-out nature of this matter.

The trial court concluded that Vance must sign a quit claim deed transferring her interest in the parties' home within 30 days and that neither party should receive attorney fees for these motions. The court also concluded:

4. Defendant's Motion for a reduction in child support and spousal support is denied due to insufficient evidence. Defendant may seek to have his support obligation reviewed by the Referee as a separate action.

5. Judgment in the amount of $7,645.81 shall be entered in favor of Plaintiff ($11,500-$3,854.19).

6. Psychologist Scott Sternhagen of Meritcare shall be appointed to evaluate and facilitate visitation between Defendant and his minor daughter.... No compensatory visitation shall be granted to Defendant.

[¶ 4] On January 29, 2003, Vance filed a motion to amend Findings of Fact 6 and 9, and Conclusion of Law 5. The trial court granted the request to amend Finding of Fact 6, stating:

Finding of Fact # 6 should state:

6. Testimony regarding Defendant's income from his employment ... is inconsistent with his 2001 income tax return. However, it is unclear whether Defendant's testimony regarding his income related to the year 2000, for which his 2000 income tax return that was filed in 2001 would accurately reflect, or to the year 2002.

The court continued:

Since it was unclear to the Court what Defendant's actual income was, the Court denied Defendant's Motion to Reduce Child Support and Spousal Support based on an insufficiency of evidence. The Court also granted Defendant leave to bring that issue before a Referee in a separate action. It appears that Plaintiff would like to have Defendant's child support obligation increased. Plaintiff... never moved the Court to modify the obligations ... and increase the amount of support payments.

The trial court denied Vance's motion to amend Finding of Fact 9, explaining, in part:

Although the summaries of medical expenses were submitted to the Court improperly by Defendant's attorney, the Court determines that they were also properly authenticated by Defendant at the hearing on January 6th, 2003. It is enough that Defendant, a witness with knowledge, testified that the summary of bills submitted were ones that he incurred on behalf of his children.

The trial court granted the motion to amend Conclusion of Law 5, ruling, in part:

Plaintiff is entitled to statutory interest on the spousal support arrearage on the day the payments became due and unpaid.... Defendant owed $9,500 to Plaintiff for the arrearage. Plaintiff is entitled to interest on that arrearage. The Clerk of Court shall assess the appropriate rate and amount of interest.... After the addition of statutory interest by the Clerk of Court to the spousal support arrearage and the addition of the attorney's fees owed to her, the Clerk of Court shall offset that total amount by the $3,854.19 owed by Plaintiff to Defendant for Plaintiff's share of uncovered medical bills. The net amount after the offset shall be a judgment in favor of Plaintiff.

The trial court again determined neither party should receive attorney fees for the motions. Both Vance and Eberhardt appealed the trial court's January 7, 2003, order, which was amended by the trial court's order on May 16, 2003.

I Vance's Appeal

A

[¶ 5] Vance contends the trial court erred in finding Eberhardt owed $9,500 in unpaid spousal support, instead of the $12,000 she claimed for 2001 and 2002. The amount of paid spousal support is a question of fact subject to a clearly erroneous standard of review. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the evidence, this Court has a definite and firm conviction a mistake has been made." Hogan v. Hogan, 2003 ND 105, ¶ 6, 665 N.W.2d 672. "A trial court's findings of fact are presumptively correct, and we view the evidence in the light most favorable to the findings." Schmidt v. Schmidt, 2003 ND 55, ¶ 5, 660 N.W.2d 196. "[W]e do not reweigh evidence or reassess credibility if there is evidence supporting the trial court's findings." Kautzman v. Kautzman, 2002 ND 118, ¶ 12, 647 N.W.2d 684. Eberhardt testified he paid $2,500 in spousal support at the rate of $500 per month in the months of January through May 2001. The record indicates there is evidence to support the trial court's finding. We conclude the finding Eberhardt owed $9,500 for spousal support, rather than $12,000 for 2001 and 2002, is not clearly erroneous.

B

[¶ 6] Vance contends the trial court should have ordered an increase in Eberhardt's child support obligation based on the income Eberhardt testified he earned at the hearing and the child support guidelines.

[¶ 7] Eberhardt's child support obligation had been set in the judgment issued April 7, 2000. In a motion dated November 30, 2002, Eberhardt moved for an order "[r]eviewing child support to reflect an amount of child support which is consistent with the North Dakota Child Support Guidelines." The trial court explained it denied Eberhardt's motion to reduce his child support obligation, "based on an insufficiency of evidence." The trial court denied Vance's request to increase Eberhardt's child support obligation because Vance "never moved the Court to modify the obligation[ ]."

[¶ 8] Section 14-09-08.4(4), N.D.C.C., provides, in part:

If a child support order sought to be amended was entered at least one year before the filing of a motion or petition for amendment, the court shall order the amendment of the child support order to conform the amount of child support payment to that required under the child support guidelines.

Thus, if the evidence had shown an increase in Eberhardt's income, the trial court would have been required to increase Eberhardt's child support obligation to conform to that required under the child support guidelines. However, the trial court found the evidence of Eberhardt's income was insufficient and denied the motion, but authorized a review before a judicial referee in a separate proceeding. In light of the insufficient evidence presented in this proceeding, we are not persuaded the trial court erred in referring the matter to determination by a referee.

C

[¶ 9] Vance contends the trial court should not have awarded Eberhardt any reimbursement for medical expenses, because the medical billings were not authenticated, identified, or referred to in any testimonial affidavit.

[¶ 10] Rule 901, N.D.R.Ev., provides, in part:

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of Witness With Knowledge. Testimony of a witness with knowledge that a matter is what it is claimed to be.

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