Guthmiller v. Guthmiller

• Decision Date: 29 November 1989
• Docket Number: No. 890198,890198
• Parties: Christi GUTHMILLER, Plaintiff and Appellee, v. Raymond GUTHMILLER, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 643

448 N.W.2d 643

58 USLW 2375

Christi GUTHMILLER, Plaintiff and Appellee, v. Raymond GUTHMILLER, Defendant and Appellant.

Civ. No. 890198.

Supreme Court of North Dakota.

Nov. 29, 1989.

Vogel Law Firm, Mandan, for defendant and appellant; argued by Colette M. Bruggman.

John S. Steinberger, Jr. (argued), Kenmare, for plaintiff and appellee.

ERICKSTAD, Chief Justice.

Raymond Guthmiller appeals from a district court order dated May 8, 1989, modifying his child support obligation. The Notice of Appeal to this Court was filed June 21, 1989. We affirm in part, reverse in part, and remand.

Raymond and Christi were divorced on April 13, 1988. Christi was awarded custody of the couple's five minor children, Pamela, David, Troy, Michelle, and Melissa. Raymond was ordered to pay child support in the amount of $50 per month per child for David, Troy, Michelle, and Melissa. ¹

On July 8, 1988, Raymond was declared disabled and awarded disability in the amount of $686 per month from the United States. The minor children were each awarded $89 per month in secondary benefits. ² On October 11, 1988, the trial court modified the divorce judgment by giving custody of David to Raymond. Raymond received all of the children's disability payments, totaling $356 per month until February 1989. In March 1989, Christi began receiving $267 per month as representative payee for Troy, Michelle, and Melissa. Raymond remained the representative payee for David, receiving $89 per month.

On March 29, 1989, Raymond made a motion to modify the judgment as it pertained to child support. Raymond based his motion on the fact that he had been declared disabled, that the children were receiving insurance benefits, and that he had been awarded custody of David. ³ The trial court issued an Order Modifying Child Support on May 8, 1989, reducing Raymond's child support payments from $200 per month to $171.50 per month, pursuant to North Dakota Human Services child support guidelines. Raymond then appealed to this Court. On appeal, Raymond contends that the district court erred in failing to give him credit for the children's social security disability benefits which Christi receives as representative payee for the children; and in the alternative, that the district court erred in failing to consider the children's social security benefits in the totality of the circumstances when setting Raymond's child support obligations.

Courts invested with the power to grant divorces and award child support have the power to change or modify the amount of child support to be paid whenever a proper showing has been made that the circumstances of the parties have materially changed. Tiokasin v. Haas, 370 N.W.2d 559, 561 (N.D.1985); Skoglund v. Skoglund, 333 N.W.2d 795, 796 (N.D.1983); Nygord v. Dietz, 332 N.W.2d 708, 709-10 (N.D.1983). A change in financial circumstances by itself does not justify a modification in child support without further inquiry into the cause of the change, including whether or not the change was permanent or temporary and whether or not it was due to a voluntary act or to neglect on the part of the obligor. Cook v. Cook, 364 N.W.2d 74 (N.D.1985); Burrell v. Burrell, 359 N.W.2d 381 (N.D.1985).

Our standard of review of a trial court's disposition of a motion to modify the provisions in a divorce decree is governed by the "clearly erroneous" standard of Rule 52(a), N.D.R.Civ.P. Bloom v. Fyllesvold, 420 N.W.2d 327, 331 (N.D.1988); Skoglund supra; Corbin v. Corbin, 288 N.W.2d 61, 64 (N.D.1980). A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Bloom, supra.

The statutes of our state set forth a strong public policy requiring the courts to assure the proper support and maintenance of minor children. See Mathisen v. Mathisen, 276 N.W.2d 123, 128 (N.D.1979). The primary factors to be considered by the court in fixing amounts of child support include each parent's earning ability, current financial circumstances and necessities, as well as the necessities of the children. Tiokasin, supra 370 N.W.2d at 562; Heller v. Heller, 367 N.W.2d 179, 182 (N.D.1985). The objective of the trial court in setting child support payments must be to strike a balance between the needs of the children and the ability of the father to pay. Gronneberg v. Gronneberg, 412 N.W.2d 84, 95 (N.D.1987); Fraase v. Fraase, 315 N.W.2d 271, 277 (N.D.1982); Kostelecky v. Kostelecky, 251 N.W.2d 400, 403 (N.D.1977).

The district court found:

"I.

"The Defendant, Raymond Guthmiller, is disabled under the provisions of the Social Security Act.

"II.

"That his income is now a $686.00 benefit from the Social Security Disability Program.

"III.

"That each of the minor children, Troy, Melissa and Michelle Guthmiller are in the actual physical care, custody and control of the Plaintiff, Christi Guthmiller, and each receives Social Security benefits in the amount of $89.00 per month arising from Raymond's disability."

The district court then concluded:

"I.

"That the Court has jurisdiction over the subject matter of and the parties to this action.

"II.

"That Raymond Guthmiller has a duty to support these children and is required to make payments for the support of his children commensurate with his ability to do so.

"III.

"That paragraph XV of the Divorce Judgment is hereby modified to read that 'The Court orders that Raymond Guthmiller pay child support in the amount of $171.50 per month for the support of his children, Troy, Michelle and Melissa Guthmiller, on the 1st day of each month commencing on the 1st day of the month after the entry of this Order and monthly thereafter.'

"IV.

"That the Defendant is not to be given credit for nor is he to receive credit against the $171.50 ordered for the $89.00 in direct payments paid monthly to each of the children from the Social Security Administration under the disability program.

"V.

"Except as modified herein, the Judgment of Divorce dated 13 April, 1988, shall remain in full force and effect."

The issue of whether or not there has been a material change in circumstances justifying a change in child support payments was raised in the district court by Christi's counsel when he said, "The tables and regulations by the Department of Human Services, although there is talk about--there is statutory references to change of circumstances, I don't feel that this is those change of circumstances." In response, the district court said: "I think the only logical construction is to give him a reduction only to the extent that the guidelines provide, that he pay $171.50."

On appeal to this Court, Raymond asserts that "[T]here exist significant changes in circumstance warranting the modification of Raymond's child support or allowing a credit for the children's insurance benefits received by Christi as representative payee." Although the district court made no specific finding that the circumstances of the parties had materially changed, it proceeded to change the payments to correspond with the North Dakota Human Services guidelines. We agree that Raymond's temporary disability, the award of insurance benefits to the children, and the transfer of custody of David and Troy from Christi to Raymond constitute a change in circumstances. ⁴ Not relevant here, but possibly on remand, are the findings and recommendations of the Referee in Raymond's order to show cause hearing which occurred subsequent to the appeal in this case. ⁵

We do not believe, however, that the district court properly modified Raymond's child support obligation. Raymond has cited, in his brief, a number of jurisdictions which give a disabled parent credit toward child support obligations for social security benefits received by the child, or the custodial parent as representative payee for the child. As an alternative to a dollar-for-dollar set-off, Raymond directs us to a number of jurisdictions which consider the child's benefits in the totality of the circumstances in a request for modification of child support or in defense of a contempt proceeding.

While this question of credit, sought by Raymond, is a question of first impression in North Dakota, the majority of jurisdictions in which the problem has been raised hold that ordinarily a father is entitled to credit on his child support obligation for social security dependency payments made directly to his children or for their benefit. ⁶ The Appellate Division of the Superior Court of New Jersey expressed its view in this manner:

"The rationale underlying this view is that such payments are not gratuities but were earned by the wage earner during his period of employment and that they constitute in effect insurance payments substituting for lost earning power. See Potts v. Potts, Iowa, 240 N.W.2d 680, 681 (Sup.Ct.1976); Binns v. Maddox, 57 Ala.App. 230, 327 So.2d 726, 728 (Civ.App.1976); Andler v. Andler, 217 Kan. 538, 538 P.2d 649, 653 (Sup.Ct.1975); Cohen v. Murphy, 368 Mass. 144, 330 N.E.2d 473 (Sup.Jud.Ct.1975); Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200, 201 (Sup.Ct.1963); Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348, 350 (Sup.Ct.1962)."

Potter v. Potter, 169 N.J.Super. 140, 404 A.2d 352, 356 (Ct.App.Div.1979).

Christi argues that the insurance benefits are owned by the children, and therefore, should not be used to reduce Raymond's child support obligations. She contends that such a use of the benefits would violate section 14-09-08, N.D.C.C., which makes it a parent's obligation to provide support for any dependent children. The Superior Court of Pennsylvania addressed a similar issue as to whether, and under what conditions, a support obligation should be reduced by the amount of social security retirement benefits paid to the children. The court said:

"The issue is not whether, technically speaking, a Social Security recipient has a...