Helbling v. Helbling, 950083

Decision Date29 December 1995
Docket NumberNo. 950083,950083
Citation541 N.W.2d 443
PartiesKathy HELBLING, Plaintiff and Appellant, v. David HELBLING, Defendant and Appellee. Civ.
CourtNorth Dakota Supreme Court

Thomas M. Tuntland, Mandan, for plaintiff and appellant.

Todd D. Kranda of Kelsch, Kelsch, Ruff & Austin, Mandan, for defendant and appellee.

LEVINE, Justice.

Kathy Helbling appeals from a district court order denying her motion to modify a child support order. We reverse and remand.

Kathy Helbling and David Helbling were married in 1974 and were divorced in 1991. They stipulated to joint legal custody of their four minor children, with David having physical custody and neither party paying child support. A judgment incorporating the stipulation was issued September 27, 1991.

The Helblings agreed to a change of custody in 1992. Joint legal custody continued, but Kathy took physical custody of the children. David agreed to pay $1,000 per month child support, to be reduced by $100 per month as each child reached nineteen or graduated from high school. David also agreed to pay tuition for the children to attend private school. An amended judgment incorporating the parties' agreement was issued September 1, 1992.

On June 30, 1994, Kathy moved for amendment of the child support order contained in the amended judgment. She requested that David's child support obligation be increased to conform to the support required by the child support guidelines. After a hearing on the motion on January 6, 1995, the district court determined that David was paying an appropriate amount of support. It therefore denied Kathy's motion to modify the child support order. Kathy appealed.

Kathy makes three arguments that the district court erred when it found that David was paying an appropriate amount of support. She claims that the district court first erred by requiring her to prove both David's income and all his possible income deductions. We agree.

Kathy sought amendment of the support order under section 14-09-08.4, NDCC. Section 14-09-08.4(3) states:

"[i]f a child support order sought to be amended was entered at least one year before the filing of a motion or petition for amendment, the court shall order the amendment of the child support order to conform the amount of child support payment to that required under the child support guidelines."

Kathy proved that the "child support order sought to be amended" was entered more than a year before the motion to amend was brought. The district court found, however, that Kathy did not bear her burden of proving that a change in David's child support obligation was justified based on his net monthly income.

A trial court's determination of child support is a finding of fact that will not be set aside unless clearly erroneous. Rule 52(a), NDRCivP; Perala v. Carlson, 520 N.W.2d 839 (N.D.1994). A finding of fact is clearly erroneous if it is the product of an erroneous view of the law, or if no evidence exists to support it, or if, on review of the entire evidence, we are left with a definite and firm conviction the trial court has made a mistake. Reinecke v. Griffeth, 533 N.W.2d 695 (N.D.1995). The allocation of the burden of proof is a question of law. Sloan v. Jefferson, 758 P.2d 81 (Alaska 1988); see also Brandt v. Brandt, 145 Wis.2d 394, 427 N.W.2d 126 (1988); Tri-State Vehicle Leasing v. Dutton, 461 A.2d 1007 (Del.Supr.1983). Questions of law are fully reviewable on appeal. van Oosting v. van Oosting, 521 N.W.2d 93 (N.D.1994).

The burden of proof has two components: the burden of going forward with the evidence and the burden of persuasion. Matter of Stone Creek Channel Improvements, 424 N.W.2d 894 (N.D.1988). The burden of persuasion, or risk of nonpersuasion, does not shift: it remains with the party having the burden of proof. 9 Wigmore, Evidence Sec. 2489 at 300 (Chadbourn rev.1981). The burden of going forward with the evidence will shift: "it may rest ... at one time upon one party and at another time upon the other." Id. at 301. The plaintiff or moving party generally bears the burden of proof. Midland Oil and Royalty Co. v. Schuler, 126 N.W.2d 149 (N.D.1964). If the party bearing the burden of proof presents evidence strong enough, if uncontradicted, to support a finding in her favor, that party has made a prima facie case. Northwest Realty Co. v. Perez, 81 S.D. 500, 137 N.W.2d 345 (1965); see 9 Wigmore, Evidence Sec. 2494 at 387 (Chadbourn rev.1981). When the party with the burden of proof establishes a prima facie case, "the burden of going forward with the evidence ... shifts to the defendant. If the defendant can impair the prima facie quality of [i.e., rebut] the case against him, the burden [of going forward] returns to the party having the burden of proof." Midland Oil, 126 N.W.2d at 152. If the party having the burden of proof establishes a prima facie case, this party will prevail unless the opposing party offers "proof to the contrary." Id. at 153.

Kathy, as movant and plaintiff, had the burden of proof in this case. Under section 14-09-08.4, she had to prove that the existing level of child support was not in conformity with the amount required by the guidelines. Kathy introduced tax returns that showed an increase in David's gross income from $54,214 in 1991, the year before the court established the existing child support obligation, to $73,252 in 1993, the year preceding Kathy's motion to increase child support. The 1993 tax return showed that David had claimed a $2,236 deduction for moving expenses. Kathy also introduced child support calculations based on David's increased income. These calculations showed that David's increased income made his existing child support obligation too low and not in conformity with the required child support level set by guidelines.

The parties agreed that David received relocation reimbursement payments of $12,550.38 in 1993 and $12,536.69 in 1994. David argued that these payments should not be included in his income for child support purposes because they represented money paid to him for expenses resulting from a move to Nebraska. Yet, he offered no proof of his actual moving expenses or proof that his expenses equaled the reimbursement payments he received. He testified only that his employer had required him to make the move, and that his employer's policy was "when they ask you to relocate they will give you expenses for holding down two homes." Although David argued that his moving expenses were greater than the amount he was allowed to deduct from his federal taxes, he did not introduce any evidence to prove this point.

In its findings of fact, the district court stated that "[n]o evidence was presented which would establish that the reimbursed relocation expenses received by Defendant were in an amount in excess of the actual out-of-pocket expenses incurred by Defendant." The district court therefore subtracted the reimbursed relocation expense payments when it determined David's net income.

Under our child support guidelines, a court must first calculate an obligor's gross income. 1 NDAC Sec. 75-02-04.1-01(2). " 'Gross income' means income from any source, in any form, but does not mean benefits received from means tested public assistance programs...." Id. Once the court determines gross income, certain items, including tax payments and "[e]mployee expenses," are then subtracted to determine the obligor's net income. NDAC Sec. 75-02-04.1-01(4). The obligor's net income is then used to set the support amount. NDAC Sec. 75-02-04.1-02(3).

The district court properly included reimbursed relocation expense payments as part of David's gross income. The court erred, however, by subtracting the entirety of these payments when calculating David's net income. When Kathy showed an increase in David's income, offset by only small proven deductions for moving expenses, she made a prima facie case for increasing David's required child support payments. The burden of going forward therefore shifted to David, who was required to prove that he was entitled to a greater offset for moving expenses. Instead, the court required Kathy to prove a negative, that David was not entitled to a greater offset. Kathy had the risk of non-persuasion and the burden of going forward. She met her burden of going forward when she made a prima facie case. When a party makes a prima facie case, that party will prevail when the opponent fails to offer "proof to the contrary." Midland Oil 126 N.W.2d at 153. The district court erred in failing to shift to David the burden of going forward. Because David failed to meet his burden of going forward and rebut Kathy's prima facie case, we conclude the court erred in finding that Kathy did not carry her burden of proof.

Kathy next argues that the court should have included any excess reimbursed relocation payments in David's net income regardless of whether David's receipt of these payments was a one-time occurrence. To the extent the court did not consider whether a portion of the nonrecurrent income should be available to the children, we agree.

Courts, by necessity, rely on past information about a child support obligor's income when calculating child support amounts. 2 See NDAC Sec. 75-02-04.1-02(7) [stating that tax returns and wage statements are the primary means of documenting income for child support calculation]. Past income is generally the best predictor of future income and child support is based upon income. The guidelines broadly define "income" to include not only wages and salaries, but nonrecurrent payments such as bonuses, severance pay, capital gains, and gifts and prizes. NDAC Sec. 75-02-04.1-01(2). Under section 75-02-04.1-01(4), NDAC, net income is calculated by deducting from gross income payments for tax, FICA, Medicare, health insurance, medical expenses, union dues, retirement contributions and required employee expenses. If a person's gross income fluctuates, as when nonrecurrent payments...

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