Mahoney v. Mahoney

• Citation: 1997 ND 149,567 N.W.2d 206
• Decision Date: 23 July 1997
• Docket Number: No. 970017,970017
• Parties: Debra Susan MAHONEY, Plaintiff and Appellee, v. Timothy James MAHONEY, Defendant and Appellant. Civil
• Court: North Dakota Supreme Court

Page 206

567 N.W.2d 206

1997 ND 149

Debra Susan MAHONEY, Plaintiff and Appellee, v. Timothy James MAHONEY, Defendant and Appellant.

Civil No. 970017.

Supreme Court of North Dakota.

July 23, 1997.

Jonathan T. Garaas (argued), of Garaas Law Firm, South, Fargo, for Plaintiff and Appellee.

Randolph E. Stefanson (argued), of Stefanson, Plambeck & Foss, Moorhead, MN, for Defendant and Appellant. Appearance by Todd W. Foss.

MESCHKE, Justice.

¶1 Timothy James Mahoney appeals an amended divorce decree modifying his child and spousal support obligations. We affirm in part, reverse in part, and remand.

¶2 Tim and Debra Susan Mahoney were divorced in September 1992. At that time, Tim was a surgeon at Dakota Clinic, Ltd., in Fargo, earning a gross annual income of $242,100. The decree placed custody of their three children with Debra, and ordered Tim to pay Debra $2,000 per month in spousal support for four years and $4,080 per month in child support.

¶3 In May 1993, Tim moved to reduce his child and spousal support obligations, alleging a significant change in his financial circumstances. By affidavit, Tim stated he had resigned from Dakota Clinic in October 1992 and started his own practice with two other surgeons. He alleged his income had decreased and had reduced his ability to pay the support ordered by the September 1992 decree. The trial court denied Tim's motion, and he appealed.

¶4 In Mahoney v. Mahoney, 516 N.W.2d 656, 662 (N.D.App.1994) (Mahoney I ), the Court of Appeals reversed and remanded for reconsideration, explaining it was "unable to conclude that the trial court's erroneous view that [Tim] was required to obtain prior court approval before changing employment did not color its judgment in denying the motion for modification." On remand, the trial court reduced Tim's child support to $1,500 per month, and his spousal support to $1,000 per month. The court extended Tim's spousal support obligation for an additional year until September 1997, and ordered him to pay Debra $2,500 in attorney fees. Debra appealed.

¶5 In Mahoney v. Mahoney, 538 N.W.2d 189, 193-195 (N.D.1995) (Mahoney II ), we reversed and remanded for a redetermination of Tim's net income from self-employment, ruling the trial court's findings about Tim's reduced income from self-employment were inconsistent with the child support guidelines. On remand, the trial court referred the calculation of Tim's net monthly income under the child support guidelines to a special master. In his May 1996 report, the special master found Tim had a net annual income of $105,799 in 1993, $90,621 in 1994, and $124,942 in 1995.

¶6 In July 1996, Debra moved for relief from the September 1992 decree. She requested: 1) modification to allow her to claim one child as a dependent for income tax purposes; 2) modification of the child support obligation; 3) modification of the spousal support obligation including extending it for eighteen months commencing July 1, 1996; and 4) an award of all attorney fees incurred by her on Tim's May 1993 motion to modify his support obligations.

¶7 After an August 1996 hearing on all pending motions, the trial court accepted the special master's report and on November 7, 1996, entered an amended decree: 1) placing physical custody of the oldest child jointly with Tim and Debra and continuing placement of physical custody of the other two children with Debra; 2) granting Tim an income-tax-dependency exemption for the oldest child, and Debra the dependency exemptions for the other two children; 3) ordering Tim to pay child support of $4,080 per month from September 8, 1992 through May 31, 1993, $2,995 per month from June 1, 1993 through December 31, 1993, $2,588 per month from January 1, 1994 through December 31, 1994, $3,464 per month from January 1, 1995 through July 31, 1996, and $2,629 per month commencing August 1, 1996; 4) ordering Tim to pay spousal support of $2,000 per month from September 8, 1992 through May 31, 1993, $1,000 per month from June 1, 1993 through July 31, 1996, and $1,740 per month for eighteen consecutive months commencing August 1, 1996; and 5) ordering Tim to pay $16,250 for Debra's attorney fees, costs, and disbursements on Tim's May 1993 motion for reduction of child and spousal support. Tim appealed, and this appellate review becomes Mahoney III.

¶8 We review a trial court's determinations regarding child support and spousal support under the clearly erroneous standard of NDRCivP 52(a). Quamme v. Bellino, 540 N.W.2d 142, 145, 147 (N.D.1995). "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made." Dalin v. Dalin, 545 N.W.2d 785, 788 (N.D.1996). As we explained in Sateren v. Sateren, 488 N.W.2d 631, 634 (N.D.1992), the complaining party on appeal bears the burden of demonstrating a finding of fact is clearly erroneous.

1. Special Master's Computation of Tim's Net Income

¶9 The child support guidelines in NDAC Ch. 75-02-04.1 govern the calculation of an obligor's child support obligation. As Hougen v. T.W., 1997 ND 101, p 4, 564 N.W.2d 281, illustrates, under NDAC 75-02-04.1-10, the court must first calculate an obligor's gross income and then subtract certain items to determine the net income that is used to set the support amount under the guideline schedule.

¶10 Tim contends the trial court clearly erred in adopting the special master's computation of his net income. He argues the computation is based on erroneous applications of the child support guidelines. First, he contends the special master miscalculated his net income as a self-employed obligor, under NDAC 75-02-04.1-05(1), by failing to deduct as business expense the full amounts paid for disability insurance, automobile costs, and travel. Second, Tim contends the special master miscalculated his net income under NDAC 75-02-04.1-01(7) by deducting his actual tax liability from his gross monthly income, rather than using the tax tables and standard deductions to determine the tax obligation required to be deducted from his gross monthly income. ¹

¶11 During oral argument to this court, Tim conceded his arguments about the special master's computation of his net income had not been presented to the trial court. The record reflects Tim simply asked the court to use his own expert's calculations instead of the special master's calculations. Debra responds Tim waived the right to raise the issues on appeal by failing to make specific objections to the special master's report to the trial court.

¶12 Generally, the failure to file timely objections to the report and recommendation of a special master waives the right to appeal the recommended findings. Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir.1995); Smith v. Frank, 923 F.2d 139, 141 (9th Cir.1991); contra Hess v. Comm'r of Public Safety, 392 N.W.2d 586, 589 (Minn.App.1986). As we explained in Dakota Grain Systems, Inc. v. Rauser, 435 N.W.2d 205, 208 (N.D.1989), quoting U.S. v. Merz, 376 U.S. 192, 199, 84 S.Ct. 639, 643-44, 11 L.Ed.2d 629 (1964), when a special master reports, "the litigants have a responsibility to assist the process ... by making their timely objections to the report in specific, rather than in generalized form, ..."

¶13 In other cases, we have held an issue cannot be considered for the first time on appeal. See Lang v. Bank of North Dakota, 423 N.W.2d 501, 502 (N.D.1988); NDRCivP 46. In Matter of Estate of Peterson, 1997 ND 48, p 19, 561 N.W.2d 618, we explained why:

We will not address issues or contentions raised for the first time on appeal, nor, ordinarily, will the court remand a case to give a party an opportunity to redo what could have been done in the first place. E.g., Wingerter v. North Dakota Dept. of Transp., 530 N.W.2d 362, 365 (N.D.1995). The purpose of an appeal is to review the actions of the trial court, not to grant the appellant the opportunity to develop and expound on new strategies or theories. E.g., In Interest of A.G., 506 N.W.2d 402, 403 (N.D.1993).

Requiring a party to first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision. See In Interest of A.G., 506 N.W.2d 402, 403-404 (N.D.1993). In A.G., 506 N.W.2d at 404, we explained that requirement prevents litigants from inviting the trial court to make an error and then seeking to prevail upon appellate review of the invited error.

¶14 The trial court's order appointing the special master directed: "Upon the service of the report, objections thereto must be made by motion, and upon notice as prescribed in Rule 6(d)." In the trial court's August 1996, "Order On Motions For Modification Of Judgment Of Divorce," the court stated: "In that no party has objected, the report of Special Master Holtgrewe is accepted according to Rule 53 of the North Dakota Rules of Civil Procedure."

¶15 In accepting the special master's report, the trial court explicitly relied upon the lack of an objection. For us to review what was not raised in the trial court would be unfair to that court and to Debra, and remanding would frustrate judicial economy. Public interest demands an end to litigation at some point so the parties may resume their normal lives. Federal Land Bank of St. Paul v. Ziebarth, 520 N.W.2d 51, 59 (N.D.1994). We conclude, by not making his specific arguments about net income to the trial court, Tim waived his right to argue on appeal that the court erred in adopting the special master's computation of his net income.

2. Income Averaging

¶16 As a predictor of Tim's future income for deciding Tim's child support obligation for 1995 and thereafter, the trial court used only Tim's 1995 net...