Hallock v. Mickels, 930122

Decision Date26 October 1993
Docket NumberNo. 930122,930122
Citation507 N.W.2d 541
PartiesVicky HALLOCK, (f/k/a Vicky L. Mickels), Plaintiff and Appellee, v. Sven MICKELS, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Timothy W. McCann (argued), S. Legal Officer, appearing under the Temporary Practice Rule, Grand Forks Regional Child Support Unit, Grand Forks, for plaintiff and appellee. Appearance by James T. Odegard, State's Atty.

Sven E. Mickels, pro se.

MESCHKE, Justice.

Sven Mickels appeals from an order modifying his child support obligation. We affirm the increase in child support, but direct a remand for reconsideration of related changes in the amended divorce decree.

During their marriage, Sven Mickels and Vicky Hallock had one child, Jennifer. When they divorced in 1980, the stipulated decree awarded primary custody of Jennifer to Vicky, ordered Sven to carry medical insurance on Jennifer, and directed him to pay Vicky $200 per month in child support. In 1992, Vicky assigned her claim to the Grand Forks Regional Child Support Enforcement Unit, which moved to increase child support.

After an agreed change of venue from Pembina County to Grand Forks County, the trial court found a material change in Sven's circumstances since 1980 in the doubling of his net monthly income to over $2,500. The court increased Sven's support obligation to $500 per month, amended the clause on medical coverage for Jennifer, lengthened the duration of support, and required income withholding and payment by a guaranteed instrument. The court also refused to hear Sven's claim that Jennifer was being abused while living in Vicky's household.


Appealing without the assistance of counsel, Sven argues that the agreed-upon support should not have been modified. He further argues that, even if an increase was proper, the $500 amount was not mandated by the guidelines and imposes a hardship on him.

After a divorce, the court retains continuing jurisdiction to modify periodic child support. Bernhardt v. K.R.S., 503 N.W.2d 233, 235 (N.D.1993). A trial court's modification of support is a finding of fact. Rueckert v. 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 firm conviction that a mistake has been made.

Unless made unnecessary by statute, see NDCC 14-09-08.4 and the Note with it, a material change in circumstances will warrant a modification in the amount of child support owed by the non-custodial parent. State of Minnesota v. Snell, 493 N.W.2d 656, 659-60 (N.D.1992). Usually, a substantial change in financial circumstances of one parent warrants a modification. Spilovoy v. Spilovoy, 488 N.W.2d 873, 876 (N.D.1992). Here, Sven's income more than doubled since he was first ordered to pay support. Smaller increases in income have been viewed as material changes. State of Minnesota v. Snell at 660; State ex rel. Younger v. Bryant, 465 N.W.2d 155, 160 (N.D.1991); Illies v. Illies, 462 N.W.2d 878, 881 (N.D.1990). We affirm this decision increasing child support because a material change occurred.

Sven argues that the increase from $200 to $500 in monthly child support was excessive. NDCC 14-09-09.7(3) creates "a rebuttable presumption that the amount of child support that would result from the application of the child support guidelines is the correct amount of child support." See Bernhardt, 503 N.W.2d at 235; Reimer v. Reimer, 502 N.W.2d 231, 233 (N.D.1993); Rueckert, 499 N.W.2d at 869; Houmann v. Houmann, 499 N.W.2d 593, 594 (N.D.1993). Under NDAC 75-02-04.1-10, the guidelines set the presumptive amount of support by using the net monthly income of the non-custodial parent, who is the obligor.

An obligor's net income is computed by subtracting deductions listed in NDAC 75-02-04.1-01(4) from his gross income. 1 Sven's annual gross income was $42,746. After subtracting allowed deductions, the trial court held that his net monthly income was $2,536. Under NDAC 75-02-04.1-10, the presumptive amount of child support for an obligor with a monthly net income (rounded to the nearest $100) of $2,500 is $492 monthly for one child. The trial court permissibly rounded that to $500 monthly.

Sven argues that his monthly net income is $803, instead of $2,536, after allowable deductions. However, his calculations are mistaken. Sven would deduct the actual amount of taxes that he designated to be withheld from his wages, rather than the amount from application of standard deductions and tax tables. Sven would deduct the cost of his family's health insurance, besides Jennifer's. These additional deductions are not authorized by NDAC 75-02-04.1-01(4), and do not change Sven's net income for reckoning child support.

Sven would deduct all of his retirement contributions, including the discretionary part. We understand that his discretionary contributions are a difficult choice for Sven. If he does not contribute fully, he will also lose the retirement benefit of a large matching contribution from his employer. Still, Sven can withhold the discretionary part if he chooses. While not entirely without compulsion, his discretionary contributions are not deductible. Under the plain meaning of NDAC 75-02-04.1-01(4)(g), discretionary retirement contributions are not required as a condition of employment.

We conclude that the trial court correctly computed Sven's net income and the presumptive amount of support.

The presumptive support set by the guidelines can be rebutted by showing hardship. NDCC 14-09-09.7(3). Hardship means:

Situations ... over which the obligor has little or no control, and which may substantially reduce the ability to pay child support for a prolonged time. If a continued or fixed expense, other than the obligor's living expenses, is actually incurred and paid, ... the amounts paid may be deducted from gross income to arrive at net income.

NDAC 75-02-04.1-06. The controllable living expenses of the obligor and his household are not hardships.

Sven claimed hardships from medical bills, home mortgage payments, credit card bills, and other household expenses. However, the trial court properly ruled that these items were "subsistence needs, work expenses, and daily living expenses" already considered by the guidelines and not deductible. NDAC 75-02-04.1-09(1)(a); Guskjolen, 499 N.W.2d at 128. Sven also claimed support of his three stepchildren, living in his home and attending college, warranted a hardship reduction. Although Sven may be bound by NDCC 14-09-09 to support stepchildren received into his family, their care and tuition would not qualify as a hardship even if they were his natural children. As we held in Rueckert, 499 N.W.2d at 870, support of children in a second family is considered by the guidelines and, unless court ordered and deductible under NDAC 75-02-04.1-01(4)(e), does not authorize a reduction in the presumptive support.

All the hardship factors listed by Sven are considered in the guidelines. Although the increased support may strain Sven's current budget, no hardship warrants departure from the guidelines. This increase of child support to $500 monthly is not clearly erroneous.


The trial court refused to hear evidence about possible child abuse of Jennifer while living in Vicky's household. In his response and at the hearing, Sven attempted to argue that Jennifer was being abused, although it is unclear what relief he expected.

Sven showed that in June 1991 Jennifer had been committed by Minnesota officials to the Archdeacon Gilfillan Center in Bemidji. However, a Minnesota court discharged Jennifer in November 1991 for lack of jurisdiction because she was only a temporary resident in Minnesota. Before Jennifer was released, her treating therapist reported that Jennifer had serious emotional and psychological problems and was probably in need of protective services. Evidently, the recommendations of this report were not acted on by any social service agency in North Dakota, her state of residence.

Neither this court nor the trial court should be unconcerned about child abuse, but there are different procedures for protecting an abused child. A child protection team in the Department of Human Services has a duty to investigate reports of suspected child abuse, to report it to the juvenile court if probable cause is found, and to furnish protective services. NDCC 50-25.1-04, -04.1, -05, -05.1, -05.2, and -06. Upon complaint, the juvenile court must act upon an allegation of child abuse. NDCC 27-20-02(5), -06, and -30. But evidence of child abuse is not relevant in a support hearing. A person acting as his own attorney, as Sven was, is equally bound by the rules of procedure, even if he lacks understanding of the correct procedures. Vinje v. Sabot, 477 N.W.2d 198, 199 (N.D.1991). Since Sven had not moved for a change in custody, the question of child abuse was not a subject for the trial court to consider in this support case.


There are clear conflicts between the trial court's order to amend the decree and the amended decree entered by the clerk. Where such a conflict exists, the decree controls until a party gets it amended or corrected under NDRCivP 60. Village West Associates v. Boeder, 488 N.W.2d 376, 379 (N.D.1992). This should not encourage a successful party to prepare a creative judgment because the judgment must conform to the trial court's order for judgment. NDRCivP 58; Village West at 379. Deliberate changes, not expressly approved by the court, are grounds for discipline or sanctions. NDRPC 3.4(c) ("A lawyer shall not ... (c) Knowingly disobey an obligation under the rules of a tribunal....").

Sven did not move for correction of this amended decree, as entered, in the trial court. However, by his original response to the Unit's motion, he had contested...

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