Geinert v. Geinert, 20020040.

• Decision Date: 15 August 2002
• Docket Number: No. 20020040.,20020040.
• Parties: Marlys GEINERT, Plaintiff, Appellee, and Cross-Appellant, v. Michael GEINERT, Defendant, Appellant, and Cross-Appellee.
• Court: North Dakota Supreme Court

649 N.W.2d 237

2002 ND 135

Marlys GEINERT, Plaintiff, Appellee, and Cross-Appellant, v. Michael GEINERT, Defendant, Appellant, and Cross-Appellee.

No. 20020040.

Supreme Court of North Dakota.

August 15, 2002.

Daniel H. Oster, Neubauer & Oster, for plaintiff, appellee, and cross-appellant.

Arnold V. Fleck, Fleck Law Office, for defendant, appellant, and cross-appellee.

NEUMANN, Justice.

[¶ 1] Michael Geinert appealed from judgments amending an original divorce judgment, and Marlys Geinert cross-appealed. We conclude the district court abused its discretion in making the modification of child support effective beginning with the July 2001 payment, rather than from the date of Michael's motion two years earlier, and the court did not abuse its discretion when it declined to impute income to Michael. We reverse and remand for further proceedings in accordance with this opinion.

I

[¶ 2] Michael and Marlys Geinert were divorced by a judgment dated August 16, 1994. The original judgment awarded custody of the parties' five minor children to Marlys and ordered Michael to pay child support of $900 per month until each child reached nineteen years of age or graduated from the 12th grade, whichever occurred first. Michael was also ordered to pay $100 per month toward child support arrearages. The judgment stated the court retained continuing jurisdiction over child support and the amount of child support could be modified in the future, and notified the parties of their right to request a review of child support under N.D.C.C. § 14-09-08.9.

[¶ 3] On May 30, 1999, Michael moved to amend the judgment, seeking a reduction of child support and modification of his duty to provide health insurance and medical expenses for the children. Marlys filed a cross-motion, seeking an increase in spousal support and modification of the health insurance provisions for the children.

[¶ 4] Due to a series of procedural and discovery disputes, the election defeat of the assigned judge, and withdrawal by Marlys's original attorney, the motion ultimately remained pending for more than two years. An evidentiary hearing was held on January 31-February 1, 2000. On June 15, 2001, the district court issued its memorandum opinion, and on July 18, 2001, the court entered its findings of fact, conclusions of law, and order for judgment. The first amended judgment was entered on July 20, 2001. Michael filed a motion to alter or amend the amended judgment, and a second amended judgment was entered on December 26, 2001.

[¶ 5] The court found that Michael's net monthly income was $1,517.89, resulting in a child support obligation for the two remaining minor children of $441 per month. The court ordered that Michael pay support of $441 per month beginning with the July 2001 payment. Child support would be reduced to $330 a month when the older of the two minor children graduated from high school or turned 19, and would terminate altogether when the youngest child graduated or turned 19.¹ Michael appealed, and Marlys cross-appealed.

II

[¶ 6] Michael argues the trial court erred in setting July 1, 2001, as the effective date of the reduction in child support, rather than the date Michael filed his motion. Michael argues he was required for more than two years to pay child support in an amount in excess of the presumptively correct amount under the child support guidelines.

[¶ 7] Section 14-09-09.7(3), N.D.C.C., creates a rebuttable presumption that the amount of child support as determined by application of the child support guidelines is the correct amount of child support. Dufner v. Dufner, 2002 ND 47, ¶ 22, 640 N.W.2d 694. This presumption that the guideline amount is correct, and must be ordered unless the court specifically finds the presumptive amount is not the correct amount of child support, applies to motions to modify the original child support order. Olson v. Olson, 1998 ND 190, ¶ 9, 585 N.W.2d 134; Zarrett v. Zarrett, 1998 ND 49, ¶ 7, 574 N.W.2d 855; Schleicher v. Schleicher, 551 N.W.2d 766, 769 (N.D.1996). Michael argues that, based upon this presumption, any modification of child support should be given effect from the time of the filing of the motion.

[¶ 8] We summarized our prior pronouncements on the effective date of child support modification in Schleicher, 551 N.W.2d at 770 (citations omitted):

The effective date for a modification of child support depends upon the facts of each case. The trial court may make its order modifying child support effective on the date the motion was filed, any date the motion was pending, the date the court issued its order, or some later date. Once a petition to modify support has been filed, interested parties are on notice that the terms of the support obligation may be changed by the court.

The reason for allowing a modification of child support to take effect as of the time of filing was explained in Gabriel [v. Gabriel], 519 N.W.2d [293,] 295 [(N.D.1994)] (quoting Olson v. Garbe, 483 N.W.2d 775, 776 (N.D.1992)):

"`If the order increasing or decreasing the obligation were required to be prospective from the date of its entry, then the party owing the support obligation or the party to whom such obligation is due could by dilatory tactics postpone his obligation to pay increased or decreased support almost indefinitely....'"

In Schleicher, we expressly noted that the parties had not argued the presumptive effect of the guidelines required that the modification be applied as of the date of the motion:

We do not address the issue, not raised by the parties, that because the guidelines provide a presumptively correct amount of child support, that amount should presumptively apply back to the date the motion was filed.

Schleicher, at 770 n. 4. In subsequent cases in which the presumption issue again was not raised, we continued to employ the standards enunciated in Schleicher. See Olson, 1998 ND 190, ¶ 15,

585 N.W.2d 134; Edwards v. Edwards, 1997 ND 94, ¶ 16, 563 N.W.2d 394; Steffes v. Steffes, 1997 ND 49, ¶ 14, 560 N.W.2d 888.

[¶ 9] We have previously hinted that the preferred effective date for an order modifying child support is the date the motion was filed. In Steffes, 1997 ND 49, ¶ 14, 560 N.W.2d 888 (emphasis added), we concluded "the effective date for a modification of child support generally is the date the motion was filed, or some later date." Similarly, in Edwards, 1997 ND 94, ¶ 17, 563 N.W.2d 394, we concluded the trial court had abused its discretion when it set an effective date for a modification of child support later than the date of the motion because the parent had a clear duty to support the child from that date under the guidelines:

The trial court delayed the effective date of Edwards' support payments to July 1, 1996, explaining that May 1, 1996 would be an appropriate date, but the court would provide Edwards a two-month credit for Ciara's 1996 summer visits. The court's reasoning was clearly a misapplication of the guidelines. The original divorce decree contemplated each party would have physical custody of Ciara for an equal amount of time and, therefore, neither parent was ordered to pay child support. However, the parties agree Ciara began living most of the time with Blore as of September 1995, when Ciara started school.

Under the guidelines, Blore then became the custodial parent. N.D.A.C. § 75-02-04.1-01(4). The trial court must apply its discretion according to the facts. Under these circumstances, and without any proper reason for a contrary effective date, we conclude it was an abuse of discretion for the trial court to delay the beginning of Edwards' support payments later than February 1996, the month in which the motion to begin support payments was filed, because there was a clear duty to support, but no support payments were being made.

The purpose of continuing jurisdiction and periodic reviews of child support orders is "to insure support is at all times consistent with the current guidelines amount." Lauer v. Lauer, 2000 ND 82, ¶ 4, 609 N.W.2d 450; see also Zarrett, 1998 ND 49, ¶ 8,

574 N.W.2d 855.

[¶ 10] We conclude that, in order to effectuate the public policy underlying the guidelines, a modification of child support generally should be made effective from the date of the motion to modify, absent good reason to set some other date. The trial court retains discretion to set some later effective date, but its reasons for doing so should be apparent or explained.

[¶ 11] Under the facts in this case, it was an abuse of discretion to delay, without explanation, the effective date of the modification until July 2001, more than two years after Michael moved to modify his support obligation. Michael was required to pay substantially more than the presumptively correct amount under the guidelines for those two years. He was required to continue paying an amount which had been based upon five minor children, when at the time the amended judgment was finally entered there were only two minor children for whom he owed support.

[¶ 12] Under these circumstances, and in view of the presumption we adopt today that the date of the motion is generally the appropriate effective date for modification of child support, we conclude the trial court abused its discretion in setting July 2001 as the effective date for the modification of child support. We reverse the order setting July 2001 as the effective date, and remand with directions that the trial court's order modifying the amount of child support be made effective beginning with the June 1999 payment.²

III

[¶ 13] On her cross-appeal Marlys argues the district court erred in calculating Michael's child support obligation, contending the court should have imputed income to Michael under N.D. Admin. Code § 75-02-04.1-07(9).

A

[¶ 14] Initially there is some dispute over which version of the child support guidelines should be applied in this case. Michael served his motion to modify child support...