Eklund v. Eklund, 950041

• Decision Date: 22 September 1995
• Docket Number: No. 950041,950041
• Citation: 538 N.W.2d 182
• Parties: Kendal J. EKLUND, Plaintiff and Appellant, v. Linda L. EKLUND, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 182

538 N.W.2d 182

Kendal J. EKLUND, Plaintiff and Appellant, v. Linda L. EKLUND, Defendant and Appellee.

Civ. No. 950041.

Supreme Court of North Dakota.

Sept. 22, 1995.

Chapman and Chapman, Bismarck, for plaintiff and appellant; argued by Daniel J. Chapman.

Steven J. Simonson (argued), Assistant State's Attorney, Minot, for defendant and appellee. Appearance by Tina M. Heinrich, Minot.

Jean R. Mullen, Assistant Attorney General, Bismarck, for amicus curiae State of North Dakota. Submitted on brief.

MESCHKE, Justice.

Kendal J. Eklund appealed from an order increasing his monthly child support payments. We reject an array of legal arguments about the authority of the Department of Human Services to adopt the child support guidelines, and the standing of a child support enforcement agency to seek modification for a custodial parent. We affirm.

Kendal J. Eklund and Linda L. Eklund were married in 1976, and divorced in 1988. Kendal had adopted Larry, born July 30, 1972, Linda's child from a prior marriage. Kendal and Linda had another child, Jeremy, born May 24, 1978. The divorce decree ordered Kendal to pay Linda $300 monthly support for each child, totaling $600.

When Larry turned eighteen in 1990, Kendal stopped support for him, but continued paying $300 monthly for Jeremy. Linda promptly moved to increase the support for Jeremy. The trial court denied the motion because Linda "failed to show a significant change of circumstances."

In July 1992, the Minot Regional Child Support Enforcement Unit (Unit) moved on Linda's behalf to increase Kendal's support for Jeremy to $540 monthly under the child support guidelines. The trial court again concluded that "no change of circumstances was shown or that an attempt was even made to show a change of circumstances in view of the position of the ... Unit that no showing was necessary." The court reasoned that under "temporary section 14-09-08.4, N.D.C.C., ... the review process is limited to child support orders which are being enforced by the child support agency," concluded "this child support order is not being enforced by the ... Unit as provided by the statute," and denied the motion.

In March 1994, the Unit moved again on Linda's behalf to increase Kendal's payments to $572 monthly to meet the child support guidelines. This time, the trial court decided that "the statute upon which the Court based its most recent ruling has been materially modified" to allow increase of support without a showing of changed circumstances. The court concluded that Kendal's procedural and constitutional objections were without merit and granted the increase. Kendal appeals.

Kendal asserts there is "virtually no issue of fact in this case," only questions of law. Kendal presents an array of legal arguments: (1) the Unit was not legally entitled to seek change of a "private" child support order; (2) res judicata prevented the Unit from renewing the motion to increase child support; (3) the Unit did not properly notify him before its "review" and "enforcement" of this order; (4) the Unit failed to establish the child support guidelines were properly adopted; and (5) the guidelines and statutes on changing child support are unconstitutional. We reject Kendal's contentions.

1. Child Support Enforcement

Kendal argues, in effect, that a child support agency has no standing to seek modification of a support order between parents unless public funds are affected. He claims NDCC 14-09-08.5 "states unequivocally that the child support agency shall give notice thereunder that a child support order 'being enforced by the child support agency' may be subject to review," and "[i]f, then, the order is not being enforced, the child support agency has no business getting involved." Arguing the Unit had no power to enforce his obligation when he "was up-to-date in all of his child support payments and always has been," Kendal insists his support payments should not be subject to judicial change on the Unit's motion. Kendal claims: "While, then, Section 14-09-08.4, N.D.C.C., provides that each order must be reviewed every 36 months, it is Section 14-09-08.5, N.D.C.C., which states how that must be done and in order to trigger the discovery procedures in Section 14-09-08.6, N.D.C.C., the procedures in Section 14-09-08.5 must be followed." ¹

Although these bureaucratic statutes are clumsily phrased, we have interpreted their effect and intent before. In State ex rel. Younger v. Bryant, 465 N.W.2d 155, 157 (N.D.1991), we held "[t]he language of the temporary section clearly provides that the review process is limited to child support orders which are being enforced by the child support agency." Anticipating expiration of the temporary sections, we explained, "By October 1, 1993, all cases will be subject to the periodic review [by the agency]." Id. (emphasis added). The Unit's motion here was made after October 1, 1993.

In 1992, the trial court correctly denied the Unit's motion on Linda's behalf to increase Kendal's child support because that order did not affect public funds and was not yet subject to periodic review and enforcement by the child support agency upon request of an obligor or obligee. After October 1, 1993, Linda's request for the Unit's assistance was clearly valid. See NDCC 14-09-08.9 ("An obligor or an obligee may request review ..."). In 1994, the court correctly granted the Unit's motion to increase Kendal's child support because NDCC 14-09-08.4 then authorized the child support agency to periodically review and seek amendment of each child support order unless "neither the obligor nor the obligee has requested review."

Kendal asks us to read in isolation the language fragment, left in NDCC 14-09-08.5, "being enforced by the child support agency," to still limit the agency's authority. That would make no sense. Section 14-09-08.5 must be read with NDCC 14-09-08.4, because we read related statutes together to harmonize them. Ebach v. Ralston, 469 N.W.2d 801, 803-04 (N.D.1991). The permanent section, NDCC 14-09-08.4(1), expressly broadened the scope of the orders to be reviewed and enforced by an enforcement agency, from those specifically enforced by the agency for public fund purposes, as the temporary section apparently did, to each child support order unless neither parent has requested review and assistance.

What is more, NDCC 14-09-08.4(3) commands a court upon motion to modify a child support order to conform the amount "to that required under the child support guidelines," and the 1993 amendments to that subsection expressly authorize judicial review of all child support orders at the initiative of the child support agency "whether or not the motion or petition for amendment arises out of a periodic review of a child support order" by the agency. 1993 N.D. Laws ch. 152, Sec. 5. Reading NDCC 14-09-08.4 and 14-09-08.5 together, the trial court's action changing Kendal's child support obligation to conform to the guidelines, at the initiative of the Unit on Linda's behalf, was correct.

2. Res Judicata

Kendal argues res judicata prevents the Unit from renewing its motion to increase child support, though he "freely concede[s] that the doctrine of res judicata ... does not apply to a motion with the same strictness as it does to a judgment." Kendal describes the Unit's latest motion as "merely a renewal of the same effort to convince the Court that the word 'enforced' does not mean 'enforced.' " Since the Unit did not appeal the denial of its 1992 motion, Kendal argues, "The State should be held estopped to revive the same argument again." We disagree.

A trial court has long had continuing power to modify a child support order. See NDCC 14-05-22(1) ("In an action for divorce, the court, before or after judgment, may give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may vacate or modify the same at any time."); Voskuil v. Voskuil, 256 N.W.2d 526, 529 (N.D.1977) (continuing jurisdiction). However, a material change of circumstances has been necessary to modify child support. See Sinkler v. Sinkler, 49 N.D. 1144, 194 N.W. 817, 820 (1923). This doctrine has given a limited finality effect to a child support order, while leaving the order "open to subsequent revision" for the best interests of the children. Restatement (Second) of Judgments Sec. 31, Comment (d) (1982).

[T]he characteristics or circumstances of the judgment in a status determination often invoke exceptions to the rule of claim preclusion. The portion of the judgment dealing with support, for example, may not purport to be final or may as a matter of law be open to subsequent revision. The concept of changed circumstances, Sec. 24, Comment f, often has application.

Id. Recent legislation has not replaced this concept, but rather it has changed the parameters and procedures for modifying child support.

The finality feature in the current law restrains the frequency of changing a child support order to not more than once a year unless a material change of circumstances is shown.

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, whether or not the motion or petition for amendment arises out of a periodic review of a child support order, and whether or not a material change of circumstances has taken place, unless the presumption that the correct amount of child support would result from the application of the child support guidelines is rebutted. If a motion or petition for amendment is filed within one year of the entry of the order sought to be amended, the party seeking amendment must also show a material change of circumstances.

NDCC 14-09-08.4(3). This subsection is much...