Illies v. Illies, 900146

• Decision Date: 13 November 1990
• Docket Number: No. 900146,900146
• Citation: 462 N.W.2d 878
• Parties: Caroline A. ILLIES, Plaintiff, Appellant and Cross-Appellee, v. Gerald P. ILLIES, Defendant, Appellee and Cross-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 878

462 N.W.2d 878

Caroline A. ILLIES, Plaintiff, Appellant and Cross-Appellee, v. Gerald P. ILLIES, Defendant, Appellee and Cross-Appellant.

Civ. No. 900146.

Supreme Court of North Dakota.

Nov. 13, 1990.

O'Neel Law Office, Fargo, for plaintiff, appellant and cross-appellee, argued by Michael C. O'Neel, Fargo.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendant, appellee and cross-appellant, argued by Bruce D. Quick, Fargo.

ERICKSTAD, Chief Justice.

Caroline Illies appeals from "the Amended Judgment dated January 29, 1990, and the subsequent Order Amending the Order Amending Judgment dated February 19, 1990" issued by the County Court for Richland County, sitting under assignment of the Presiding District Judge pursuant to section 27-07.1-17(9), N.D.C.C., asserting that the court erred in setting the child support obligation of ex-husband Gerald Illies, and in its allocation of dependency tax exemptions. Gerald Illies cross-appeals on the grounds that the court erred in setting the child support obligation of both parties and by reducing ex-wife's arrearages. We affirm in part, reverse in part, and remand.

Caroline and Gerald Illies were married on August 10, 1974. In August of 1980, Caroline filed for divorce in the District Court for Richland County. Trial of this matter was held before the Honorable Robert L. Eckert on September 21, 1981, with the judgment being entered on September 28, 1981. The judgment granted the divorce, distributed the couple's marital assets, and made provisions for the custody, support, and parental visitation of the children.

The district court's judgment provided that the couple would have joint custody of their three children, with physical custody being granted to Caroline during the nine school months and to Gerald during the summer months. Gerald was allocated the dependency exemptions for the two youngest children while Caroline was allocated the exemption for the oldest child. Additionally, Gerald was ordered to pay $250 per month in child support during the months that Caroline had physical custody of the children, and Caroline was ordered to pay $200.00 a month during the period Gerald had physical custody of the children. ¹

During the summer of 1984, Caroline expressed a desire and intention to continue her education. As a result, on August 8, 1984, the parties entered into a stipulation concerning the child support arrangement. The stipulation provided that Gerald's support payments would be reduced to $170 per month during the time Caroline had physical custody of the children. Caroline's support obligations were to be suspended until she completed or discontinued her educational plans. The district court approved the stipulation on August 28, 1984, with the condition that should either party begin to receive any type of welfare assistance, the original payment schedule would be revived.

In October of 1985, Gerald was notified that his support payments were in arrears. Upon further investigation Gerald discovered that his support payments had been increased to the amount set by the original payment schedule because Caroline began to receive governmental aid on September 1, 1985. On December 5, Gerald filed a motion to amend the August 28, 1984, order, with the intent of eliminating the provision that reinstated the original support obligations if either party received governmental assistance. Gerald also requested that he be allowed to claim all of the dependency exemptions until Caroline stopped receiving the governmental assistance.

On January 2, 1986, the district court issued an order in response to Gerald's December 5, 1985, motion. This new order provided that Caroline would be responsible for her support payments, but enforcement of those payments would be suspended until she completed her education. The order also provided that Gerald receive all three of the dependency exemptions during the period Caroline's support payments were suspended. In all other respects the original judgment of divorce dated, September 28, 1981, was to remain in effect.

In May of 1989, Caroline was graduated from North Dakota State University. On October 11, 1989, Caroline initiated a motion to establish the amount of arrearages, seek an increase in Gerald's support obligations, and eliminate her support obligations. Gerald responded with a counter motion to increase Caroline's support obligations.

On December 31, 1989, the county judge, hearing the case on assignment by the presiding district judge, issued an order amending judgment which set the support obligation to commence on January 1, 1990, at a rate of $225 a month from Gerald to Caroline for all twelve months of the year. Caroline's support obligation was eliminated. Gerald was granted all three dependency exemptions, and Caroline's arrearages were reduced from $3,450 to $2,500. Upon motion by Caroline, the court issued an order amending the order amending judgment which included the findings that Caroline's gross monthly income was $2,675 (net income $2,110) and Gerald's gross monthly income was $1,871 (net income $1,647.57).

Caroline appeals from the December 31, 1989, order amending judgment asserting that the court erred by setting Gerald's support payments at only $225 per month and by giving Gerald all three dependency exemptions. Gerald cross-appeals asserting the court erred by setting his support payments too high, eliminating Caroline's support obligation, and reducing Caroline's arrearages.

I. The Support Payments

Caroline contends that the court erred when it failed to consider the child support guidelines in setting the amount of Gerald's support obligation. Subsection 3 of N.D.C.C. 14-09-09.7 establishes a rebuttable presumption that the amount of child support reflected in the guidelines is correct, and further provides that "[a] written finding or a specific finding on the record must be made if the court determines that the presumption has been rebutted." Caroline argues that, as the child support payments Gerald is required to make vary significantly from the payment schedule provided in the child support guidelines, and the court failed to make findings justifying this variance, the court erred in setting the amount of Gerald's support obligation.

Caroline first raised this issue on appeal. We have previously stated that new issues cannot be considered for the first time on appeal. Lynch v. Williston City Com'n, 460 N.W.2d 136, 138 (N.D.1990); Farm Credit Bank of St. Paul v. Stedman, 449 N.W.2d 562, 565 (N.D.1989); Kern v. Art Schimkat Construction Co., 125 N.W.2d 149 (N.D.1963). See also, Lang v. Bank of North Dakota, 423 N.W.2d 501, 502 (N.D.1988) (allowing a new claim to be raised but recognizing that usually a new issue cannot be considered for the first time on appeal). Although Caroline did request that the court make additional findings concerning the parties' gross and net incomes, she at no time raised the issue that the court failed to follow N.D.C.C. 14-09-09.7 by failing to make written findings that the correctness of the guidelines had been rebutted by factors not considered by the guidelines. Because the question of whether or not the court must follow N.D.C.C. 14-09-09.7 in these respects was not raised in the trial court, we will not consider that issue on appeal. For the law of this case, as it determines the rights of the parties in this case, we will consider the appropriateness of the court's award of child support in light of our past decisions without reference to that issue.

The trial court has the power to modify the amount or method of support to be paid upon a showing that the financial circumstances of the parties has significantly changed. E.g. Burrell v. Burrell, 359 N.W.2d 381 (N.D.1985).

"A trial court's determination on modification of child support is treated as a finding of fact subject to the clearly erroneous standard of review under Rule 52(a), NDRCivP. Bloom v. Fyllesvold, 420 N.W.2d 327 (N.D.1988). A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id."

Koch v. Williams, 456 N.W.2d 299, 300 (N.D.1990). However, we will not substitute our judgment for that of the trial court. That we may have viewed the evidence differently had we been the trier of the facts will not support a determination that the findings of the trial court were clearly erroneous. Gabel v. Gabel, 434 N.W.2d 722, 723 (N.D.1989). The court determined that the financial circumstances of both parties had significantly changed since the time of the original judgment and the subsequent hearings concerning support. In 1981, Gerald's gross monthly income was determined to be $1,287. The court found that the monthly gross income of Gerald for the year 1990 will be $1,871. In 1981, Caroline's gross monthly income was determined to be $1,029. The court found that the monthly gross income for Caroline for the year 1990 will be $2,675. In light of the evidence which supports these findings, we do not find the trial court's finding that there had been a significant change in circumstances to be clearly erroneous.

Caroline asserts on appeal, and Gerald asserts on cross-appeal, that the court erred in determining the amount of child support Gerald should pay. Gerald also asserts in his cross-appeal that the court erred in releasing Caroline from her support obligation. When determining the amount of child support to be paid by each party, the court focuses "on how the changed circumstances affect the financial needs of the supporting spouse and his or her ability to pay, as well as on the needs of the children and the dependent spouse." Burrell, 359 N.W.2d at 383 (citing Corbin v. Corbin, 288 N.W.2d 61 (N.D.1980)). The needs of the children will be balanced with the supporting parent's ability to pay. Burrell, 359 N.W.2d at 383. A...