Kjos v. Brandenburger
Decision Date | 27 June 1996 |
Docket Number | No. 950329,950329 |
Citation | 552 N.W.2d 63 |
Parties | Janell KJOS, f/k/a Janell Brandenburger, Plaintiff and Appellee, v. Bryan R. BRANDENBURGER, Defendant and Appellant. Civil |
Court | North Dakota Supreme Court |
Alisha Ankers of Johnson Law Office, Fargo, for plaintiff and appellee. Appearance by Janell Kjos.
L. Patrick O'Day, Jr., Fargo, for defendant and appellant. Appearance by Bryan Brandenburger.
Bryan R. Brandenburger has appealed from a district court order affirming a referee's findings of fact and conclusions of law finding him underemployed, imputing income to him, ordering him to pay Janell Kjos for medical expenses and child support, and setting a visitation schedule. We reverse and remand.
The parties were divorced in 1990. The divorce decree awarded the physical care and custody of the parties' two minor children to Kjos, prescribed visitation arrangements, required Brandenburger to pay child support of $75 per month per child, and required him to pay one-half of the children's medical, dental, orthodontic, and optometric expenses not paid by insurance.
In 1994, Kjos filed a motion requesting Brandenburger be held in contempt for not paying child support, and sought a modification of child support, a judgment for Brandenburger's unpaid share of the children's health care expenses, and more specific visitation provisions. The referee issued findings of fact and conclusions of law on July 18, 1995. The referee found Brandenburger to be underemployed and imputed income to him. The referee concluded Brandenburger should pay $657.48 for his unpaid share of the children's medical expenses, child support of $328 per month, and $64 per month toward the child support arrearage. The referee also fixed a visitation schedule. Brandenburger requested district court review of the referee's findings and conclusions. The district court affirmed the referee's findings and conclusions and Brandenburger appealed.
Brandenburger contends the referee's finding of underemployment is clearly erroneous, and that the income imputed to him was a misapplication of the child support guidelines. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, 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." Klose v. Klose, 524 N.W.2d 94, 96 (N.D.1994).
There was very little evidence directed to the issue of Brandenburger's underemployment. Brandenburger testified on cross-examination:
Kjos testified:
From that relatively insubstantial subjective evidence of Brandenburger's carpentry experience, the referee found Brandenburger underemployed and imputed income to him of $401 per month:
Evidence that Brandenburger does carpentry work--"[p]robably six" jobs per year--when he has time "in the off season" and does most of his carpentry work between November and March on bids by which he tries to get $5 to $10 per hour for his labor, depending on the difficulty of the work involved, does not support a finding of underemployment when there was no evidence of how much work was available. Nor does the evidence support the imputation of income of $401.00 per month to Brandenburger. There is no evidence in the record that there was cabinet and carpentry work available to Brandenburger in his community to provide him with 22 weeks of full-time work for forty hours a week at an average of $7.50 per hour. The findings of underemployment and imputed income are not supported by the evidence and are clearly erroneous.
Furthermore, the finding of underemployment reflects an erroneous view of the law. North Dakota Administrative Code § 75-02-04.1-07 authorizes imputing income to an underemployed child support obligor, based on the obligor's earning capacity. Surerus v. Matuska, 548 N.W.2d 384 (N.D.1996); Nelson v. Nelson, 547 N.W.2d 741 (N.D.1996). In a case in which the evidence of underemployment is much more compelling than in this case, evidence of a child support obligor's personal work and earnings situation may not be irrelevant in determining if the obligor is underemployed, and what income should be imputed to him or her. However, the child support guidelines present an objective standard--"prevailing amounts earned in the community by persons with similar work history and occupational qualifications"--against which to measure the obligor's "gross income from earnings":
"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.A.C. § 75-02-04.1-07(1)(b). An obligor's "community" includes any place within 100 miles of the obligor's residence. N.D.A.C. § 75-02-04.1-07(1)(a). There is a presumption of underemployment "if the obligor's gross income from earnings is less than six-tenths of prevailing...
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