Garbe v. Garbe, 900336

Decision Date02 April 1991
Docket NumberNo. 900336,900336
Citation467 N.W.2d 740
PartiesRuth Ann GARBE, Plaintiff and Appellee, v. Robert Keith GARBE, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Collin P. Dobrovolny for Lamont, Skowronek & Dobrovolny, Minot, for defendant and appellant.

Gregory L. Lange for Richardson & Lange, Hazen, for plaintiff and appellee.

VANDE WALLE, Justice.

Robert Garbe appealed from an order and judgment entered in district court for Ward County amending a divorce judgment. We reverse the amended judgment and remand.

Robert and Ruth Garbe were divorced by a judgment entered March 17, 1987. Prior to entry of judgment, the parties stipulated to the terms of the custody and support of their minor child, Cassandra, as well as to visitation rights and to the distribution of the marital estate. The stipulation which was incorporated into the judgment provided that Ruth have custody of Cassandra. Robert was to pay $250 per month in child support until Cassandra reached the age of 18 unless Ruth remarried, in which case $50 of that amount was to be placed into an educational trust fund. Ruth subsequently remarried and the trust fund was established. Each year the parties were to alternate income tax deductions for Cassandra. Robert was required to maintain medical insurance for Cassandra, who had cerebral palsy, and was required to pay any uncovered costs associated with her physical therapy.

In April of 1990, Ruth brought a motion to modify several provisions of the divorce judgment. Following a hearing on the motion, the district court amended the original divorce judgment by an order dated July 12, 1990. Child support was increased to $500 per month to continue until Cassandra reaches age 19 or graduates from high school, whichever occurs first. Ruth's name was added to the educational trust fund and she was awarded the income tax deduction for three continuous years commencing in 1990.

Robert has raised a number of issues challenging the trial court's modifications. The dispositive issue raised is whether the trial court erred in failing to make specific findings of a material change of circumstances warranting the modifications. We hold that the trial court did so err.

We have stated many times that courts which have the power to award child support have the power to modify the amount of support and the method by which it is paid upon a showing that the circumstances of the parties have materially changed, e.g., Gabel v. Gabel, 434 N.W.2d 722 (N.D.1989). Recent developments in this area of the law have not made unnecessary the need to find a material change of circumstances.

In 1989 our Legislature directed the department of human services to establish child support guidelines "to assist courts in determining the amount that a parent should be expected to contribute toward the support of the child...." 1989 N.D.Laws ch. 148, Sec. 4 (codified at NDCC Sec. 14-09-09.7). Section 14-09-09.7(3) created a rebuttable presumption that the amount of child support resulting from an application of the guidelines would be correct. In Illies v. Illies, 462 N.W.2d 878 (N.D.1990), however, we held that the child support guidelines established by the department of human services pursuant to section 14-09-09.7, NDCC, were invalid because the department failed to properly promulgate the guidelines. 1

The same 1989 Act also provided for the periodic review of child support orders. See 1989 N.D.Laws ch. 148, Secs. 16, 17. A temporary new section, effective October 1, 1990, applied only to child support orders being enforced by child support agencies. See NDCC Sec. 14-09-08.4 (note). 2 A permanent section provides for a periodic review of all child support orders and becomes effective October 1, 1993. NDCC Sec. 14-09-08.4. 3 Both of these sections require to some degree, the child support awards to comply with the suggested guidelines. But these sections were not effective at the time of the court's order for modifications in this case, and they are not applicable. The requirement that a party show that there has been a material change in circumstances before a court may modify a child support award is not yet eliminated. See State ex rel. Younger v. Bryant, 465 N.W.2d 155 (N.D.1991). 4

Ruth asserts that the extension of support payments past the age of majority must be affirmed because section 14-09-08.2, NDCC, eliminates the requirement of a material change of circumstances for such a modification. Section 14-09-08.2(1) provides:

"(1) In the absence of a written agreement to the contrary entered into after July 1, 1989, a judgment or order requiring the payment of child support until the child attains majority is deemed to be modified to continue as to the child until the end of the month during which the child is graduated from high school or attains the age of nineteen years, whichever occurs first, if:

a. The child is enrolled and attending high school and is eighteen years of age prior to the date the child is expected to be graduated; and

b. The child resides with the person to whom the duty of support is owed."

Section 14-09-08.2 applies only if the child is enrolled and attending high school, a provision omitted from the trial court's amended judgment. While this section modifies the support order upon the existence of certain conditions, a similar provision in an amended judgment which complied with the provisions in section 14-09-08.2 would not be improper and would not require a finding of a material change of circumstances. 5 Cf. Freyer v. Freyer, 427 N.W.2d 348 (N.D.1988) [child support may be awarded beyond the age of majority]. The trial court's modification, however, does not currently comply with section 14-09-08.2.

With regard to the amount of the payments, the trial court determined that it was "appropriate to use the guidelines as a standard" to re-examine the question of child support and that "utilizing the guidelines will tend to equalize the percentage of support contribution of Ruth and Robert." While we have never held that the trial court may not follow the suggested guidelines if the child support awarded is fair and reasonable and supported by the evidence, see Younger, supra (Levine, J., concurring specially), the trial court must find a material change of circumstances before it can apply the guidelines. Only after the trial court determines that a material change of circumstances has occurred, without reference to the guidelines, can it proceed to modify the child support. See Younger, supra (VandeWalle, J., concurring specially). The disparity between the obligor's current payments and the payments suggested by the guidelines cannot serve as a basis for finding a change in circumstances. Younger, supra.

In order to make a determination of whether there has been a material change of circumstances, the trial court must conduct a fact-finding inquiry. Redlin v. Redlin, 436 N.W.2d 5 (N.D.1989). The facts relied on by the trial court in considering child support modification are findings of fact subject to Rule 52(a), NDRCivP. Burrell v. Burrell, 359 N.W.2d 381 (N.D.1985). Rule 52(a) provides, in part:

"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment...."

The trial court's findings of fact will not be set aside on appeal unless they are clearly erroneous. Gabel, supra.

The purpose for requiring specific findings of fact under Rule 52(a) is to "enable the appellate court to understand the factual determination made by the trial court and the basis for its conclusions of law and judgment entered thereon." All Seasons Water Users v. Northern Improvement Co., 399 N.W.2d 278 (N.D.1987). Findings that enable this court to understand the rationale behind the trial court's decision are all that is required. Healy v. Healy, 397 N.W.2d 71 (N.D.1986).

While not labeled as such, the trial court in its order made the following findings relevant to a material change of circumstances:

"There has been an increase in the cost of living since 1987 and utilizing the guidelines will be more reflective of the cost of raising a child in 1990.

"As children grow older, more money is required for their needs and support.

"Cassandra has cerebral palsy and will require more medical attention than a child that has no health problems. While the parents knew of Cassandra's affliction, attendant uninsured costs of her medical treatment are being more precisely identified."

These findings are not sufficient for us to understand the rationale behind the trial court's decision. The trial court has made no specific finding of a material change of circumstance which would warrant a modification of the child support. While the general findings of the trial court may indicate that certain circumstances of the parties have changed, the extent of that change is not apparent from the findings. Not every cost of living increase, nor a birthday of a child constitutes a material change of circumstances which would warrant a modification of child support. These are occurrences which the parties presumably anticipated at the time of their stipulation. An unanticipated change in Cassandra's physical condition, or the treatment therefor, may constitute a material change of circumstance, see Schaff v. Schaff, 449 N.W.2d 570 (N.D.1989), but such change has not been identified in the findings. While we have previously held that a material change of circumstances may be implied from certain nonspecific findings of fact, see Guthmiller v. Guthmiller, 448 N.W.2d 643 (N.D.1989), we have never affirmed a child support modification order when we could not discover whether or not the trial court's determination was clearly erroneous due to a failure to comply with Rule 52(a). See Skoglund v. Skoglund, 333 N.W.2d 795 (N.D.1983).

Accordingly, we reverse...

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