Henry v. Henry, 970370

Decision Date16 July 1998
Docket NumberNo. 970370,970370
Citation581 N.W.2d 921,1998 ND 141
PartiesCandice M. HENRY, Plaintiff and Appellee, v. Paul E. HENRY, Defendant and Appellant. Civil
CourtNorth Dakota Supreme Court

Moosbrugger, Dvorak & Carter, Grand Forks, for plaintiff and appellee; argued by Shirley A. Dvorak.

Ward K. Johnson III, Grand Forks, for defendant and appellant.

MESCHKE, Justice.

¶1 Paul Henry appealed a decree of divorce from Candice Henry to compel the trial court to order genetic paternity testing and to contest the amount of child support. We affirm and remand for consideration of Candice's request for attorney's fees on appeal.

¶2 Mitchell Henry was born on February 13, 1995. His parents, Paul and Candice, were later married on April 21, 1995. From a previous marriage, Paul has a daughter living in Montana. When he married Candice, Paul was a Captain in the United States Air Force, stationed at the Grand Forks Air Force Base, and earned nearly $55,000 yearly as a navigator.

¶3 In November 1995, Paul asked the Air Force to end his active duty on June 1, 1996. Paul attempted to withdraw this request on May 3, 1996, while he was on temporary assignment abroad. Paul returned to the Grand Forks Air Force Base on May 12, 1996 and, the next day, was arrested for domestic violence against Candice. As a result, the base commander denied Paul's request to remain on active duty on May 23, 1996, explaining:

Although Captain Henry has a sound duty record, his conduct off-duty calls into question his suitability for continued military service. He has exhibited poor judgment in handling his personal affairs as evidenced by his arrest for domestic violence on 13 May 96. (Even though the matter will not be pursued by authorities at the request of his spouse).

Candice sued Paul for divorce on May 29, 1996, just two days before Paul separated from the Air Force.

¶4 Candice moved for an interim order. Although Paul was unemployed when the motion was heard on June 27, 1996, the trial court found he "has a historical earning capacity of at least $3600.00 net per month," and "financial resources other than a monthly income to assist in the support of his son." Temporarily, the trial court placed primary physical custody of Mitchell with Candice and, effective June 1, 1996, ordered Paul to pay $586 monthly child support.

¶5 When trial began April 17, 1997, Paul withdrew his claim for primary physical custody of Mitchell. At the August 6, 1997 continuation of the trial, Paul's testimony, for the first time, questioned Mitchell's paternity. On September 30, 1997, the trial court granted the divorce, placed physical custody of Mitchell with Candice, and ordered Paul to pay her child support of $586 monthly with $236 monthly to be accumulated in arrears while Paul attends law school. Paul appealed.

I. Genetic Testing

¶6 Paul argues he asked the trial court for genetic testing. He asserts the trial court's decision was erroneous for not ordering genetic testing to determine his paternity of Mitchell.

¶7 Paternity is governed by the Uniform Parentage Act at N.D.C.C. ch. 14-17. "The natural father may be established under this chapter." N.D.C.C. § 14-17-03. "A man is presumed to be the natural father of a child if: ... [a]fter the child's birth, that man and the child's natural mother have married ... and ... [w]ith the man's consent, that man is named as the child's father on the child's birth certificate...." N.D.C.C. § 14-17-04(1)(c). Thus, Paul is presumed to be Mitchell's natural father. However, under N.D.C.C. § 14-17-04(2), that presumption can be rebutted "in an appropriate action only by clear and convincing evidence."

¶8 Evidence that will rebut the presumption of paternity includes genetic testing.

The court may, and upon request of a party shall, require the child, mother, or alleged father to submit to genetic tests, including tests of blood or other tissues. The tests must be:

a. Of a type generally acknowledged as reliable by accreditation bodies designated by the secretary of the United States department of health and human services;

b. Performed by a laboratory approved by such an accreditation body; and

c. Performed by an expert qualified as an examiner of genetic data or specimens, appointed by the court.

N.D.C.C. § 14-17-10(1). Paul claims the trial court's failure to order genetic testing at his request "improperly denied [him] the remedy afforded by the statute to rebut the presumption of his paternity."

¶9 In his brief, Paul insists his "request for a genetic paternity test was both sufficient and timely. There was eighteen questions and responses directed towards the issue of paternity at the August 6, 1997 hearing." We have carefully reviewed the entire trial transcript, including the specific testimony Paul references. While there was testimony about the subject of Mitchell's paternity, we find nothing to support Paul's position he requested the court to order genetic testing.

¶10 "An application to the court for an order shall be by motion...." N.D.R.Civ.P. 7(b)(1). Paul did not move for genetic testing until his post-decree "Motion for Order for Genetic Paternity Test" on November 17, 1997. In his supporting brief then, Paul said he "stated during the proceedings that he was unsure whether he was the child's father because of the frequent misrepresentations made to him by [Candice], and also because he believes the minor child does not look like him." However, nowhere in that brief did Paul explain how he had moved during the trial to compel paternity testing. Because Paul's motion for genetic testing was made after the trial court had entered the divorce decree, and is still pending in the trial court, we conclude the subject of genetic testing is not here for review on this appeal.

II. Child Support
A.

¶11 The trial court ordered Paul to pay Candice $586 monthly child support with $236 of that to accumulate in arrears while Paul attends law school. The amount of child support was based on Paul's "ability to earn a monthly net income of $3,600, and recognizing the child support obligation in the state of Montana."

¶12 Paul contends the trial court erred in determining the amount of child support because (1) there was no determination of the presumptively correct amount of support, (2) there was insufficient evidence to support a finding of underemployment, and (3) the order was in error even if the trial court properly determined underemployment.

Child support determinations are findings of fact subject to review under the "clearly erroneous" standard. N.D.R.Civ.P. 52(a); Hieb v. Hieb, 1997 ND 171, p 6, 568 N.W.2d 598 (citing Wolf v. Wolf, 557 N.W.2d 742, 744 (N.D.1996)). A finding is clearly erroneous if it is based on an erroneous view of the law, if no evidence supports it, or if the entire record leaves the reviewing court with a definite and firm conviction a mistake has been made. Nelson v. Nelson, 547 N.W.2d 741, 743 (N.D.1996). In Hieb at p 7 (citations omitted), we summarized the method for determining the amount of support due:

Child support determinations are governed by N.D.A.C. Chapter 75-02-04.1. A correct finding of an obligor's net income is essential to determining the proper amount of child support. To determine the proper amount of support owed, the court must first determine the obligor's net income from all sources and the number of children to be supported. After the obligor's net income is established, that amount is applied to the Guidelines to determine the proper amount of child support. The amount prescribed by the Guidelines enjoys a rebuttable presumption of correctness.

B.

¶13 Paul argues the trial court erred by failing to order the presumptively correct amount of child support under the North Dakota Child Support Guidelines. Candice admits the trial court did not order the presumptive amount for Paul's current earnings, but instead "properly considered evidence of earning capacity," found Paul underemployed, and imputed income from that evidence to set child support.

¶14 The Guidelines define an underemployed parent who is obligated to pay child support:

An obligor is "underemployed" if the obligor's gross income from earnings is significantly less than prevailing amounts earned in the community by persons with similar work history and occupational qualifications.

N.D.Admin.Code 75-02-04.1-07(1)(b). Furthermore, an obligor is presumed to be underemployed "if the obligor's gross income from earnings is less than sixth-tenths of prevailing amounts earned in the community by persons with similar work history and occupational qualifications." N.D.Admin.Code 75-02-04.1-07(2). "If the obligor is 'underemployed,' income is imputed under NDAC 75-02-04.1-07(3), based on earning capacity, less actual gross earnings." Nelson, 547 N.W.2d at 745 (footnote omitted). In Nelson at 746 (emphasis original), we discussed why the guidelines authorize a court to impute income to an underemployed parent:

A parent has a duty to support his children to the best of his abilities, not simply to his inclinations.

The underemployment guideline represents the Department's effort to balance an obligor's freedom to make reasonable employment decisions with his duty to support his children diligently. An obligor is still free to switch jobs, or become self-employed. However, if that voluntary change results in the obligor becoming "underemployed," then the obligor who made the change should make a greater sacrifice than his children.

¶15 A trial court has "considerable discretion when determining whether an obligor meets the definition of 'underemployed.' " Nelson, 547 N.W.2d at 746. We conclude it was within the trial court's discretion in this case to find Paul underemployed.

C.

¶16 Candice insists the trial court "properly determined the amount of child support to be paid" based on "evidence of the income earned by those with similar experience and...

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  • Rydberg v. Rydberg
    • United States
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    • April 13, 2004
    ...(scientific evidence was sufficient to support trial court's decision excluding husband as child's biological parent); Henry v. Henry, 1998 ND 141, ¶¶ 7-8, 581 N.W.2d 921 (genetic testing will rebut the presumption of paternity created by N.D.C.C. § 14-17-04(2)); Blake v. Division of Child ......
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