Hagel v. Hagel, 20050434.

Citation2006 ND 181,721 N.W.2d 1
Decision Date21 August 2006
Docket NumberNo. 20050434.,20050434.
PartiesJean L. HAGEL, Plaintiff and Appellant v. Scott B. HAGEL, Defendant and Appellee.
CourtUnited States State Supreme Court of North Dakota

Joseph F. Larson II (on brief), Larson Law Firm, Jamestown, N.D., for plaintiff and appellant.

Scott B. Hagel, defendant and appellee; no appearance.

CROTHERS, Justice.

[¶ 1] Jean L. Hagel appeals from a divorce judgment challenging the district court's determination of the onset date of Scott B. Hagel's child support obligation and its denial of her request for spousal support. We reverse and remand for the district court to reconsider the onset date of child support and the request for spousal support and to provide adequate explanations of its decisions on those matters, and we otherwise affirm the judgment.

I

[¶ 2] The parties were married in Jamestown in 1983. They have a son born in 1986 and a daughter born in 1988. Scott Hagel has been employed at Newman Signs since 1979 and has worked as a construction supervisor for the past 10 years. During the construction season, he is gone from home for the work week. Jean Hagel is a high school graduate who has worked at several jobs in the Jamestown area during the course of the marriage, mainly as a secretary and cashier. In 1989 the family moved to a farmstead near Ypsilanti where Scott Hagel raised cows. The couple separated in May 2001, and Jean Hagel left the farm with the children and moved to Jamestown. The children, for the most part, resided with Jean Hagel in Jamestown and attended school there during the separation.

[¶ 3] Jean Hagel commenced this divorce action in March 2004. The district court originally issued an interim order granting Jean Hagel primary physical custody of the son and joint physical custody of the daughter, but the order was amended in May 2004 by stipulation of the parties to grant Jean Hagel temporary primary physical custody of both children. Jean Hagel sought child support commencing on the date the parties separated, May 15, 2001, and in December 2004, the court ordered that Scott Hagel pay $864 per month for child support commencing April 1, 2004, with credit for $2,133 he had paid since that date. The court reserved "decision on the onset date of child support and what, if any, child support should be paid by Defendant from and after May 15, 2001."

[¶ 4] Following a trial, the district court in August 2005 awarded Jean Hagel primary physical custody of the daughter and ordered that Scott Hagel pay $1,090 per month child support beginning March 2005, when the divorce trial was held, through May 2005, when the son graduated from high school. The court ordered the child support amount reduced to $701 per month beginning in June 2005. The court refused to order Scott Hagel to pay child support from the date of the parties' separation, May 15, 2001, through April 1, 2004, the date his child support obligation commenced under the interim order. The court awarded an equal amount of the approximately $142,000 net marital estate to each party, with Jean Hagel receiving mainly cash and Scott Hagel receiving mainly the income producing property. Although the court found Jean Hagel was a disadvantaged spouse, the court did not award her spousal support, but ordered that Scott Hagel pay $5,000 for her attorney fees.

II

[¶ 5] Jean Hagel argues the district court erred in failing to require Scott Hagel to pay child support during the parties' almost three-year separation period preceding the divorce action.

[¶ 6] Throughout the interim proceedings and the divorce trial, Jean Hagel sought child support for the separation period under N.D.C.C. §§ 14-08-01, 14-08.1-01, and 14-09-08. Section 14-08-01(2), N.D.C.C., authorizes any married person to bring an action against the person's spouse to provide for "[t]he support of minor children by said husband or wife living with the party bringing suit." Section 14-09-08, N.D.C.C., places a duty upon parents to "give their children support and education suitable to the child's circumstances," and provides that a "court may compel either or both of the parents to provide for the support of their children." Section 14-08.1-01, N.D.C.C., provides:

A person legally responsible for the support of a child under the age of eighteen years who is not subject to any subsisting court order for the support of the child and who fails to provide support, subsistence, education, or other necessary care for the child, regardless of whether the child is not or was not in destitute circumstances, is liable for the reasonable value of physical and custodial care or support which has been furnished to the child by any person, institution, agency, or county social service board. Any payment of public assistance money made to or for the benefit of any dependent child creates a presumption that such payment equals the reasonable value of physical and custodial care or support.

These statutes govern when there is an obligation to support, there is no court-ordered child support, and no support has been paid by the obligated person. See Linrud v. Linrud, 552 N.W.2d 342, 346 (N.D.1996). In determining a reasonable amount of reimbursement under these statutes, a court may, but is not required to, consider the Child Support Guidelines to estimate the appropriate amount a noncustodial parent should provide for the ongoing support and care of the child. Krug v. Carlson, 2000 ND 157, ¶ 10, 615 N.W.2d 564.

[¶ 7] We have said a district court's decision whether to award past child support is discretionary and will not be overturned on appeal unless the court has abused its discretion. See Brandner v. Brandner, 2005 ND 111, ¶ 21, 698 N.W.2d 259; McDowell v. McDowell, 2003 ND 174, ¶ 27, 670 N.W.2d 876; Richter v. Houser, 1999 ND 147, ¶ 17, 598 N.W.2d 193. However, under some circumstances, a failure to award interim child support may constitute error as a matter of law. See Ackerman v. Ackerman, 1999 ND 135, ¶¶ 20-21, 596 N.W.2d 332; cf. McDowell, 2003 ND 174, ¶ 28, 670 N.W.2d 876 (amount of child support is set from date of motion to modify, "absent a good reason for not doing so"). Although Jean Hagel argues the abuse of discretion standard no longer applies because of the legislature's 1999 repeal of N.D.C.C. § 14-09-14 and amendment of N.D.C.C. § 14-17-14(4), see 1999 N.D. Sess. Laws ch. 141, §§ 12, 25, section 14-09-08, N.D.C.C., continues to provide that a court "may compel" a parent to provide support, and N.D.C.C. § 14-17-14(4) is part of the Uniform Parentage Act which is not applicable in this case. See Krug, 2000 ND 157, ¶ 5 n. 1, 615 N.W.2d 564. The word "may" is usually employed to imply permissive, optional, or discretional, and not mandatory, action or conduct. City of Devils Lake v. Corrigan, 1999 ND 16, ¶ 12, 589 N.W.2d 579.

[¶ 8] In denying the request for child support during the parties' separation, the district court said:

23.

The Court reserved its ruling on the onset date of the child support obligation of Scott. The parties separated in May, 2001, and Jean commenced this divorce action in March, 2004. The Court ordered Scott to pay child support of $864 as of April, 2004, in the Second Amended Interim Order. Scott made minimal effort to support the children during the period of separation. He gave them some cash, made minimal payments to Jean, assisted with car payments, and purchased some clothing. Jean also transferred $900 to her account for living expenses.

24.

The Court has the discretion to set the date of the commencement of the child support obligation. Wigginton v. Wigginton, 2005 ND 31, ¶ 13, 692 N.W.2d 108. It shall be the order of the Court that the child support obligation of Scott is retroactive to the month of the commencement of this action (March, 2004).

[¶ 9] A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law. Kramer v. Kramer, 2006 ND 64, ¶ 20, 711 N.W.2d 164. The facts recited by the court support an award of child support during the parties' separation. The only reason given by the court to deny the request is that it had "discretion" to set the date of the commencement of the child support obligation. A court's discretionary authority does not in itself establish that its decision is the product of a rational mental process leading to a reasoned decision. When, as here, the district court provides no indication of the evidentiary and theoretical basis for its decision and the basis is not otherwise ascertainable in the record, we are left to speculate whether factors were properly considered and the law was properly applied, leaving us unable to perform our appellate function. Clark v. Clark, 2005 ND 176, ¶ 9, 704 N.W.2d 847. We therefore must reverse the court's decision denying child support during the parties' three-year separation and remand for reconsideration and a reasoned explanation of the court's ruling.

III

[¶ 10] Jean Hagel argues the district court erred in denying her request for spousal support.

[¶ 11] In Ulsaker v. White, 2006 ND 133, ¶ 20, 717 N.W.2d 567, we recently explained:

Section 14-05-24.1, N.D.C.C., provides, "[t]aking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time." An award of spousal support is to be based on consideration of the Ruff-Fischer guidelines. Sack v. Sack, 2006 ND 57, ¶ 11, 711 N.W.2d 157; Staley v. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182. A separate finding that a spouse is "disadvantaged" is not necessary for an award of spousal support. Sack v. Sack, 2006 ND 57, ¶¶ 11-12, 711 N.W.2d 157. We have recognized that a difference in earning power should be considered when determining spousal support. Sommers v. Sommers, 2003 ND 77, ¶ 17, 660 N.W.2d 586. Property...

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    • United States
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    ...whether to award past child support is discretionary and will not be overturned on appeal absent an abuse of discretion. See Hagel v. Hagel, 2006 ND 181, ¶ 7, 721 N.W.2d 1;Brandner v. Brandner, 2005 ND 111, ¶ 21, 698 N.W.2d 259;McDowell v. McDowell, 2003 ND 174, ¶ 27, 670 N.W.2d 876;Richter......
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