Koch v. Williams, 890376

Decision Date01 June 1990
Docket NumberNo. 890376,890376
Citation456 N.W.2d 299
PartiesKathleen H. KOCH (Williams), Plaintiff and Appellant, v. Brian K. WILLIAMS, Defendant and Appellee. Civ.
CourtNorth Dakota Supreme Court

Henry H. Howe of Howe & Seaworth, Grand Forks, for plaintiff and appellant.

Brian K. Williams, Bismarck, pro se.

LEVINE, Justice.

Kathleen Koch appeals from an order modifying the child support obligation of her former husband, Brian Williams. The trial court found that Williams' incarceration at the North Dakota State Penitentiary constituted a significant change in circumstances justifying the modification. We hold that a child support obligor's incarceration for incest does not constitute a material change of circumstances justifying a modification of child support payments. We reverse and remand.

After Williams pleaded guilty to two counts of incest, two other counts were dismissed and Williams was sentenced to five years at the state penitentiary, with two years suspended. 1 He began serving his sentence on July 12, 1989. The next day, he moved to terminate his support obligation. At the time, he was obligated to pay $200 per month for his minor daughter until she turned eighteen in May 1992 or graduated from high school. The trial court terminated the child support during Williams' incarceration and ordered its reinstatement sixty days following Williams' release from prison.

Koch argues that the trial court erred in finding the incarceration to be a significant change of circumstances justifying modification. We agree.

Depending upon the cause of the change, a trial court may modify an award of child support when a material change in financial circumstances is demonstrated. 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.

We believe our holding in this case was presaged by Muehler v. Muehler, 333 N.W.2d 432 (N.D.1983). In Muehler, this Court explained that the "change of circumstances" necessary to justify modification "is closely tied to equity and contemplates the application of equitable principles." We subscribed to the principle that a self-induced change in circumstances generally does not constitute valid grounds for modification. "A self-induced decline" in income "does not, in the absence of a substantial showing of good faith or cause therefor, constitute such an exceptional change in circumstances as to afford the required basis for modifying an alimony award." Id., at 434, quoting 24 Am.Jur.2d, Divorce and Separation, § 677, at 795 (1966). We reasoned that a modification proceeding is grounded in equity and is, therefore, governed by the equitable concept that one who seeks equity must do equity. It is these equitable underpinnings of modification proceedings that account for our holding that a voluntary or self-induced reduction in income does not justify a reduction in child support. E.g., Foster v. Nelson, 206 N.W.2d 649 (N.D.1973); see also Bloom v. Fyllesvold, supra; Gabel v. Gabel, 434 N.W.2d 722 (N.D.1989). In Foster, supra, the obligor voluntarily assumed the detrimental change in his financial condition by buying an expensive outboard motor, acquiring his former wife's equity in the homestead and marrying a woman with a child from her previous marriage. There we held that the obligor failed to prove that his inability to pay was not due to some voluntary act or neglect on his part.

While it is true that the "change of circumstances" necessary to warrant modification is one based primarily on a change in financial circumstances, Cook v. Cook, 364 N.W.2d 74 (N.D.1985), it is also true that not every change in financial circumstances justifies a modification. Bloom v. Fyllesvold, supra. When the change is voluntary or self-induced, no modification is warranted because the obligor, by voluntarily placing herself or himself in a less financially secure position, is without clean hands and precluded from seeking equity. Even though the law never requires impossibilities, NDCC § 31-11-05(22), one who voluntarily dissipates or reduces income is not protected either from the consequences of such conduct or by equitable maxims. Muehler, supra; Foster, supra.

Williams argues that his current inability to pay was not self-induced. He asserts that it was the sentencing court which placed him in a position where he is unable to support his child because the court sentenced him to incarceration rather than to probation. We dismiss this argument out of hand because it indicates a total lack of insight on Williams' part of his sole and exclusive responsibility for the gross violation of one child's trust and the resultant impact on another child's entitlement to her father's support.

We deem Williams' incarceration to be self-induced and voluntary. It was his voluntary, knowing conduct that placed him in his present incarcerated and impecunious position. Holding Williams accountable for his child support obligation does not, in our view, constitute double punishment. His incarceration simply does not excuse his duty to support his child. This is not a contempt proceeding, where Williams would be at risk of losing his liberty, but rather an equitable modification proceeding. Equity is not available to one in Williams' position. Accord, Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985); contra, Edmonds v. Edmonds, 53 Or.App. 539, 633 P.2d 4 (1981).

The reason for reducing child support in a case where the financial circumstances of an obligor have been substantially reduced is to alleviate the obvious difficulty or impossibility that the obligor faces to provide for his or her own needs as well as for those of his or her children. E.g., Hoster v. Hoster, 216 N.W.2d 698 (N.D.1974); Larson v. Larson, 234 N.W.2d 861 (N.D.1975). Here, Williams' needs are being provided by the State. He is not charged for food, clothing, housing, or recreation. His present needs are, therefore, not being jeopardized by the continuation of his support obligation.

We accept as true Williams' assertions that he is presently unable to provide the required support. In North Dakota, unpaid child support accrues and the arrearages may not be modified or forgiven. Kinsella v. Kinsella, 181 N.W.2d 764 (N.D.1970). To the argument that the debt will hinder his rehabilitation upon his release, our response is that the amount to be paid each month can be adjusted as his financial condition then requires. Parker v. Parker, 152 Wis.2d 1, 447 N.W.2d 64 (Ct.App.1989).

This State has a strong public policy of protecting the best interests of children by assuring them of parental support and maintenance. Tiokasin v. Haas, 370 N.W.2d 559 (N.D.1985). This policy applies even when the obligor is incarcerated. See NDCC § 14-07-12 (district court has power to transfer the property of an incarcerated spouse to the other spouse "to manage, control, sell or encumber ... for the support and maintenance of the family" if the imprisoned spouse is sentenced to one year or more). We believe our public policy in favor of children's security and maintenance is best promoted by holding that a felon incarcerated for incest is not excused from child...

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