Gabriel v. Gabriel, 940098
Citation | 519 N.W.2d 293 |
Decision Date | 18 July 1994 |
Docket Number | No. 940098,940098 |
Parties | Gerald GABRIEL, Plaintiff and Appellant, v. Sandra GABRIEL, n/k/a Sandra Hare, Defendant and Appellee. Civ. |
Court | United States State Supreme Court of North Dakota |
Richard B. Baer, Bismarck, for plaintiff and appellant.
Robert J. Schultz of Conmy, Feste, Bossart, Hubbard & Corwin, Fargo, for defendant and appellee.
This is an appeal of an order denying a motion to modify child support. Divorced parents each had custody of one of their two sons. The father's parental rights were terminated as to the child in the mother's custody and the child was adopted by the mother's current husband. The trial court refused to modify child support because it said there was not a change in circumstances and the father whose parental rights were terminated as to the one child earned more than the mother. We reverse, holding termination of parental rights is a change in circumstances that ends the obligation of the person whose parental rights were terminated to pay support for that child; and remand for computation of the mother's child support obligation under the child support guidelines.
Gerald and Sandra Gabriel were divorced in December 1985. The parties have two children, Derek, born May 23, 1977, and Jered, born December 6, 1982. Initially, Sandra received custody of Derek and Jered, and Gerald was ordered to pay $500 per month in child support. In July 1987, the parties agreed their eldest son, Derek, would live with Gerald and the youngest son, Jered, would remain with Sandra. Gerald's child support obligation was reduced to $250 per month. Sandra paid no child support.
In 1991, with Gerald's permission, Sandra's present husband adopted Jered and Gerald's parental rights were terminated. Gerald discontinued making child support payments to Sandra. By motion filed January 4, 1994, Gerald moved to modify the support order seeking child support for Derek from Sandra. The trial court denied Gerald's motion concluding:
Gerald appeals claiming the trial court made an error of law in denying his motion. This Court has jurisdiction under Art. VI, Sec. 6, N.D. Const., and N.D.C.C. Sec. 28-27-02. The appeal is timely under Rule 4(a), N.D.R.App.P.
A trial court's findings of fact on a motion to modify child support will not be set aside on appeal unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P.; Rueckert v. Rueckert, 499 N.W.2d 863, 868 (N.D.1993). "A finding of fact is clearly erroneous if, although there is some evidence to support it, a reviewing court, on the entire record, is left with a definite and firm conviction that a mistake has been made...." Rueckert. Conclusions of law are not fortified by the clearly erroneous rule and are fully reviewable on appeal. In Interest of Kupperion, 331 N.W.2d 22, 27 (N.D.1983).
The trial court's order denying Gerald's motion for child support was based on two erroneous conclusions of law: (1) termination of Gerald's parental rights was not a change of circumstances justifying a child support modification; and, (2) because Gerald earns more income than Sandra, Sandra is under no financial duty to pay support for Derek. 1
Parents are under a mutual duty to provide their children with support and education suitable to the children's circumstances. N.D.C.C. Sec. 14-09-08. Where custody of children is split between parents, the amount of child support is computed for each parent, and the lesser amount is subtracted from the greater. N.D.Admin.Code Sec. 75-02-04.1-03; Heley v. Heley, 506 N.W.2d 715, 721 (N.D.1993). Presumably, an offset was accomplished in 1987 when Derek went to live with Gerald and Gerald's child support obligation was reduced to $250 per month. The balance of the offset, however, changed in 1991 when Gerald's parental rights were terminated and Sandra's husband adopted Jered. A final decree of adoption:
N.D.C.C. Sec. 14-15-14(1)(a) and (b).
Once Gerald's parental rights were terminated, he no longer had a legal duty to provide support for Jered's care. Sandra, on the other hand, still has a legal duty to provide support for Jered and Derek.
N.D.C.C. Sec. 14-09-09.7(3) establishes a rebuttable presumption the correct amount of child support is computed by applying the child support guidelines to the obligor's net income. The child...
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