Guskjolen v. Guskjolen, 920247

Decision Date27 April 1993
Docket NumberNo. 920247,920247
Citation499 N.W.2d 126
PartiesLinda GUSKJOLEN (Walters), Plaintiff and Appellee, v. Larry GUSKJOLEN, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Solberg, Stewart, Boulger, Miller & Johnson, Fargo, for plaintiff and appellee; argued by Wayne O. Solberg.

Garaas Law Firm, Fargo, for defendant and appellant; argued by Jonathan T. Garaas.

SANDSTROM, Justice.

Larry Guskjolen appealed from an amended judgment of the district court terminating Linda (Guskjolen) Walter's child support obligation for Larry and Linda's minor child, Leilani. The district court held Linda's decision to stop working to care for children of her second marriage created a hardship over which she had little or no control. We reverse.

Larry and Linda were divorced in 1983. Linda is a high school graduate with a two-year college degree in occupational therapy. At the time of the original divorce proceedings she was working as a certified occupational therapist assistant, earning approximately $20,000 per year. Larry was awarded custody of Leilani, and Linda was ordered to pay child support of $100 per month.

Linda subsequently married Kerry Walters and had a child in September 1989. During these proceedings Linda and Kerry were expecting the birth of a second child. Linda quit working fulltime to care for these children of her second marriage. She then took a part-time position doing cleaning and janitorial services in their apartment complex, from which she earns very little income.

On December 15, 1991, Linda moved to modify the original child support order. Following a hearing, the trial court terminated Linda's support obligation. Larry then filed this appeal.

Section 14-09-09.7, N.D.C.C., authorizes the Department of Human Services to promulgate child support guidelines and creates a rebuttable presumption that the amount of child support which would result from application of the guidelines is the correct amount of child support. Subsection 3 of Section 14-09-09.7, N.D.C.C., provides for rebuttal of the presumption:

"3. There is a rebuttable presumption that the amount of child support which would result from the application of the child support guidelines is the correct amount of child support. The presumption may be rebutted if a preponderance of the evidence in a contested matter establishes that factors not considered by the guidelines will result in an undue hardship to the obligor or a child for whom support is sought. A written finding or a specific finding on the record must be made if the court determines that the presumption has been rebutted." [Emphasis added]

The trial court considered Linda's current family living expenses and income, and expressly found that it would constitute an undue hardship for Linda to pay child support for Leilani. Larry asserts that the trial court's finding of undue hardship is clearly erroneous, and he requests this court to reinstate the original $100 per month support obligation.

A trial court's findings on a motion to modify child support are subject to review under Rule 52(a), N.D.R.Civ.P., and will not be overturned on appeal unless they are clearly erroneous. Hartman v. Hartman, 466 N.W.2d 155 (N.D.1991). A finding of fact is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made. Montgomery v. Montgomery, 481 N.W.2d 234 (N.D.1992). We are convinced that the trial court has made a mistake and that the court's finding of undue hardship for Linda to pay child support for Leilani is clearly erroneous.

Linda feels a moral obligation to not work fulltime outside her home so she can personally be with and care for her current family. However, Linda also has a legal obligation to provide financial support for Leilani. Parents have a mutual duty to support their children. N.D.C.C. Sec. 14-09-08. The guidelines expressly state that "considerations of policy require that all parents understand the parental duty to support children to the extent of the parent's ability." N.D.A.C. Sec. 75-02-04.1-04. Although the guidelines do not provide for imputing wages to an unemployed obligor, they do require the court to include the cash value of in-kind income as part of an obligor's gross income in computing her child support obligation. N.D.A.C. Sec. 75-02-04.1-01(2) and (3). Spilovoy v. Spilovoy, 488 N.W.2d 873 (N.D.1992).

In considering Linda's motion, the trial court applied the guidelines and found that, based upon Linda's in-kind income, Linda should pay child support for Leilani of $102 per month. The court recognized that this is the presumptively correct amount of child support that Linda is legally obligated to pay for Leilani.

"THE COURT: All right. Okay. Yes. I agree.

"I--I think that the--Mr. Garaas in his Exhibit 1 is--is entirely correct. I think the presumptive child support guideline amount at this time is a hundred and two dollars."

However, the court then erroneously found that it would impose an undue hardship for Linda to pay any child support for Leilani.

"She has chosen to--for whatever reason to--to--to stop her employment to facilitate raising another child, soon to be two children. I have to be fair. What's fair is fair. What's equitable is equitable.

"The guidelines have been--the presumption has been rebutted. She doesn't have the ability to pay, and it would be a hardship to require her to pay. Therefore, the motion is allowed."

The presumptively correct child support obligation under the guidelines can be rebutted only if a preponderance of the evidence...

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11 cases
  • Schatke v. Schatke, 930367
    • United States
    • North Dakota Supreme Court
    • August 24, 1994
    ...The guidelines generally do not provide for imputing wages to an unemployed obligor. See Heley, 506 N.W.2d at 722; Guskjolen v. Guskjolen, 499 N.W.2d 126, 128 (N.D.1993); Spilovoy v. Spilovoy, 488 N.W.2d 873, 878 (N.D.1992). However, "a spouse may not voluntarily place himself in a position......
  • Heley v. Heley
    • United States
    • North Dakota Supreme Court
    • September 29, 1993
    ...net minimum wage income to Vikki. However, the guidelines do not provide for imputing wages to an unemployed obligor. Guskjolen v. Guskjolen, 499 N.W.2d 126, 128 (N.D.1993); Spilovoy, 488 N.W.2d at We conclude that the trial court erred in departing from the guidelines in this case and that......
  • Hallock v. Mickels, 930122
    • United States
    • North Dakota Supreme Court
    • October 26, 1993
    ...Rueckert, 499 N.W.2d 863, 868 (N.D.1993). Our review is governed by the clearly erroneous standard of NDRCivP 52(a). Guskjolen v. Guskjolen, 499 N.W.2d 126, 128 (N.D.1993). As we said in Guskjolen, we will reverse only if, after viewing the entire record, we are left with a definite and fir......
  • Kenmare Educ. v. Kenmare Public Sch. Dist.
    • United States
    • North Dakota Supreme Court
    • June 29, 2006
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