Minar v. Minar, 2000179.

• Decision Date: 17 April 2001
• Docket Number: No. 2000179.,2000179.
• Citation: 2001 ND 74,625 N.W.2d 518
• Parties: Cheryl Marie MINAR, Plaintiff and Appellee, v. Dean Leslie MINAR, Defendant and Appellant.
• Court: North Dakota Supreme Court

625 N.W.2d 518

2001 ND 74

Cheryl Marie MINAR, Plaintiff and Appellee, v.Dean Leslie MINAR, Defendant and Appellant.

No. 2000179.

Supreme Court of North Dakota.

April 17, 2001.

Leslie Bakken Oliver, Vogel Law Firm, Bismarck, ND, for plaintiff and appellee.

Chad C. Nodland, Chad C. Nodland, P.C., Bismarck, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1]Dean Leslie Minar appealed the second amended judgment of divorce, challenging the district court's denial of his motion to reduce child support payments.The district court temporarily suspended part of Dean's child support payment while he pursues his education full time, instead of decreasing the child support obligation.Dean also challenges the district court's order establishing June 2001 as the date for reinstatement of the full child support payments plus the additional monthly payment of $250 of accrued arrearage and the health insurance obligation.We affirm the temporary suspension of part of the child support payment and reverse the determination of the child support amount and health insurance obligation.We remand for the determination of Dean's child support obligation in accordance with N.D. Admin. Code § 75-02-04.1-07(3)(c) and for the determination of health insurance obligation for minor children in accordance with N.D.C.C. § 14-09-08.10.We remand for reconsideration of the date of reinstatement of both the full payment of child support and the additional payment of arrearage.

I

[¶ 2] Dean and Cheryl Minar were divorced in 1992.Cheryl was awarded custody of their three children and Dean was ordered to pay $350 per month in child support.Dean's child support obligation was increased to $758 per month in 1994.In October 1997, Dean's child support obligation was changed to $751 per month for the two remaining minor children.Dean has maintained health insurance coverage for the minor children since the divorce.

[¶ 3] Dean was employed as a drafter for Melroe Ingersoll Rand, Inc.("Melroe").On September 1, 1998, Melroe terminated Dean's employment because they sold the division in which Dean worked.Prior to his termination, Dean earned $18.72 per hour working as a drafter.

[¶ 4] Dean started taking classes toward a degree in engineering while working for Melroe.Once he was laid off, Dean tried to find similar employment.He located three positions for drafters, in Bismarck, Dickinson, and Jamestown.Dean determined these employment opportunities were minimal because they required either additional training for new computer programs or relocation more than 100 miles from his present residence.Dean did not apply for any of these positions; rather, Dean enrolled full time at Bismarck State College.His plans are to finish his associate degree at Bismarck State College and enroll at a four-year university in another city to obtain a bachelor's degree in mechanical engineering.His projected graduation date is the spring of 2002.

[¶ 5] Dean continued to pay his child support obligation until December 1, 1999, by utilizing money from the severance package he received from Melroe and selling some personal property.Dean filed a motion to modify his child support obligation on December 1, 1999.A hearing was held on March 16, 2000.

[¶ 6]The trial court found Dean's gross monthly income at Melroe was $3,185 and his net monthly income was $2,569.62, resulting in a support obligation of $751 for the support of his two children.These numbers are identical to the 1996 income used as the basis for calculating the child support obligation for the previous amended judgment in October 1997.The trial court also found Dean's earning capacity was $2,569 "by virtue of his previous employment" and his present employment status "is a result of his election to pursue his education so as to enhance his earning capacity."The trial court also stated Dean's present employment status was in part determined by involuntary termination and that he could secure continued employment as a drafter even though it may necessitate relocation.Although these last two statements in the order were not labeled as findings of fact, "we will recognize and consider findings of fact regardless of the label that may be placed upon them."Rummel v. Rummel,265 N.W.2d 230, 234(N.D.1978).

[¶ 7]The trial court did not reduce Dean's child support obligation but suspended part of the payment while he is attending school.The trial court ordered Dean to pay $161 per month, an amount based on a full-time minimum wage employment.The remaining $590 per month is to continue to accrue in arrears on a monthly basis, payable at the rate of $250 per month starting June 15, 2001, in addition to the regular child support payment.

[¶ 8] Finding health insurance coverage for the minor children was available through Cheryl's employment at a "reasonable or nominal cost,"the trial court ordered Cheryl to furnish health insurance coverage for the minor children through May 2001.

[¶ 9]The trial court ordered the reinstatement of the child support and health insurance "in its entirety effective with the month of June, 2001, or the first full month subsequent to the defendant's termination or withdrawal from his formal education program."

II

[¶ 10] Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.Buchholz v. Buchholz,1999 ND 36, ¶ 11, 590 N.W.2d 215.A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor's child support obligation.Lauer v. Lauer,2000 ND 82, ¶ 3, 609 N.W.2d 450.As a matter of law, the trial court must clearly set forth how it arrived at the amount of income and level of support.Id.The trial court's findings of fact in making its child support determination are overturned on appeal only if they are clearly erroneous.Richter v. Houser,1999 ND 147, ¶ 3, 598 N.W.2d 193.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 record, we are left with a definite and firm conviction that a mistake has been made.Id.Findings are adequate if we can understand from them the factual basis for the court's determination.Jarvis v. Jarvis,1998 ND 163, ¶ 29, 584 N.W.2d 84.

[¶ 11] Under the child support guidelines, an obligor's ability to pay child support is not determined solely upon actual income, but also takes into account the obligor's earning capacity.Buchholz,1999 ND 36, ¶ 13, 590 N.W.2d 215.The trial court's findings under the imputed income provisions of the child support guidelines must be clear, and we must be able to understand from the record how the court arrived at the amount of income and level of support.Lauer,2000 ND 82, ¶ 9, 609 N.W.2d 450.The trial court made no finding that Dean was underemployed or unemployed, but instead found Dean had an earning capacity of a net monthly income of $2,569 "by virtue of his previous employment."On that basis, the trial court continued the child support obligation at the same amount of $751 established in the previous amended judgment in October of 1997.

[¶ 12] Dean concedes he is unemployed.Section 75-02-04.1-07(3) of the North Dakota Administrative Code states income must be imputed to an obligor who is unemployed and describes how to impute income based on earning capacity.

3.Except as provided in subsections 4, 5, and 9, monthly gross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross earnings, must be imputed to an obligor who is unemployed or underemployed.

a. An amount equal to one hundred sixty-seven times the hourly federal minimum wage.

b. An amount equal to six-tenths of prevailing gross monthly earnings in the community of persons with similar work history and occupational qualifications.

c. An amount equal to ninety percent of the obligor's greatest average gross monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided.

[¶ 13]The trial court erred by continuing the existing child support obligation established in October of 1997.At that time, Dean was employed at Melroe so the court looked at his income for 1996 and established the $751 per month obligation.Now, Dean is unemployed so income must be imputed using the greatest of N.D. Admin. Code § 75-02-04.1-07(3)(a), (b), or (c).

[¶ 14]Section 75-02-04.1-07(3)(a), N.D. Admin. Code is based on the federal minimum wage of $5.15 per hour times 167 hours per month, or $860.00 per month.Section 75-02-04.1-07(3)(b), N.D. Admin. Code is based on six-tenths of the "prevailing gross monthly earnings in the community of persons with similar work history and occupational qualifications."In his proposed child support computation, Dean used an hourly wage of $8.98 for drafters in west central North Dakota from Job Service of North Dakota's North Dakota Occupational Wages 1996-97, p. 48, to estimate the hourly wage of persons in the community with similar job qualifications.Multiplying $8.98 per hour by an estimated 167 hours of work per month results in a gross monthly wage of $1,499.66.Six-tenths of $1,499.66 is $899.80, the estimated gross monthly wage amount under N.D. Admin. Code § 75-02-04.1-07(3)(b).

[¶ 15] The evidence in the record is not adequate to determine Dean's "greatest average gross monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court" as required by N.D. Admin. Code § 75-02-04.1-07(3)(c).However, when Dean's employment...