Oldham v. Oldham, 20030072.

• Decision Date: 25 March 2004
• Docket Number: No. 20030072.,20030072.
• Citation: 2004 ND 62,677 N.W.2d 196
• Parties: Daniel Sharpe OLDHAM, Plaintiff and Appellee v. Rebecca Lyn OLDHAM, Defendant and Appellant.
• Court: North Dakota Supreme Court

677 N.W.2d 196

2004 ND 62

Daniel Sharpe OLDHAM, Plaintiff and Appellee v. Rebecca Lyn OLDHAM, Defendant and Appellant.

No. 20030072.

Supreme Court of North Dakota.

March 25, 2004.

Melinda Hanson Weerts, Weerts Allen, Fargo, ND, for plaintiff and appellee; submitted on brief.

Jonathan T. Garaas, Garaas Law Firm, DeMores Office Park, Fargo, ND, for defendant and appellant; submitted on brief.

SANDSTROM, Justice.

[¶ 1] Rebecca Lyn Oldham appealed from the judgment, a post-judgment order, and the amended judgment entered in a divorce action brought by Daniel Sharp Oldham.¹ We affirm.

I

[¶ 2] Daniel Oldham, born in 1975, and Rebecca Oldham, born in 1976, married in 1998. They had one child, who was born in 2000. Daniel Oldham worked as a fire-fighter in Moorhead, Minnesota. Rebecca Oldham was employed as a public school teacher in Fargo and pursued a master's degree, which she expected to receive in May 2003. The parties separated on January 15, 2002. Daniel Oldham sued for a divorce, and Rebecca Oldham answered and counterclaimed.

[¶ 3] After a hearing, the trial court issued findings of fact, conclusions of law, and order for judgment on December 9, 2002. A judgment was entered on January 17, 2003. The trial court issued an order on February 28, 2003, ruling on Rebecca Oldham's motion to amend and Daniel Oldham's motion to hold Rebecca Oldham in contempt of court or to amend. An amended judgment was entered on March 14, 2003. The amended judgment granted a divorce, awarded the parties joint legal custody of their child, awarded Rebecca Oldham the primary physical care of the child, and awarded Daniel Oldham liberal visitation, including three overnight visits during each nine-day period. It ordered Daniel Oldham to pay child support of $540 per month from December 1, 2002, and to reimburse Rebecca Oldham $37 per month for health and dental insurance premiums attributable to the parties' child. The amended judgment directed sale of the marital home and application of the proceeds "after satisfying the mortgage and the Start Funds loans," with the first $3,780 of the remainder going to Rebecca Oldham, and the remainder applied to specified debts, followed by an equal division between the parties; divided the rest of the parties' property and debts; and directed the parties to file joint income tax returns for 2002, with any refunds applied to satisfaction of marital debts. It denied Rebecca Oldham's claim for spousal support, and ordered each party to be responsible for his or her attorney fees and costs. Rebecca Oldham appealed from the judgment, the post-judgment order, and the amended judgment.

[¶ 4] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 5] Rebecca Oldham contends: (1) the trial court erred in setting Daniel Oldham's child support obligation; (2) Daniel Oldham's overnight visitation with the parties' child should have been limited to two nights in each nine-day period; (3) the trial court erred in determining the values of property and debts, resulting in an inequitable division of marital property; (4) the trial court erred in denying her request for rehabilitative spousal support for two years; (5) the trial court should have ordered Daniel Oldham to pay her attorney fees; (6) the trial court erred in requiring her to secure health insurance for the parties' child and allowing Daniel Oldham to reimburse her for the cost of the premium attributable to coverage for the child; and (7) the trial court erred in directing the parties to file joint income tax returns for 2002.

III

[¶ 6] The trial court ordered Daniel Oldham to pay child support of $540 per month from December 1, 2002, to reimburse Rebecca Oldham $37 per month for health insurance premiums attributable to their child, and to share equally any uncovered medical expense for the child. In awarding child support, the court used Daniel Oldham's calculations. Rebecca Oldham contends the trial court erred in ordering "child support in the wrong amount of $540.00 per month [instead of the minimum correct amount of $620.00]," and in failing "to make it effective April 1, 2002, as always requested, and Rebecca suggests, mandated by the North Dakota Child Support Guidelines."

A

[¶ 7] Rebecca Oldham asserts that, in calculating his child support obligation, Daniel Oldham "fails to include the employers' share of [Public Employees Retirement Association of Minnesota]." She argues Daniel Oldham's "employer's contribution... must be included as part of Daniel's gross income" for computing child support. Section 75-02-04.1-01(5), N.D. Admin. Code, provides, in part:

a. "Gross income" means income from any source, in any form, but does not mean:

....

(2) Employee benefits over which the employee does not have significant influence or control over the nature or amount unless:

(a) That benefit may be liquidated; and

(b) Liquidation of that benefit does not result in the employee incurring an income tax penalty.

Rebecca Oldham has not shown Daniel Oldham had significant influence or control over the nature or amounts of his employer's contributions, or that they could be liquidated without an income tax penalty. "We have said `a party waives an issue by not providing supporting argument' and, `without supportive reasoning or citations to relevant authorities, an argument is without merit.'" Kautzman v. Kautzman, 2003 ND 140, ¶ 15, 668 N.W.2d 59 (quoting Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 27, 643 N.W.2d 29). Rebecca Oldham has not provided any citations to relevant authorities or supportive reasoning. Her conclusory arguments are, therefore, without merit.

[¶ 8] The trial court annualized Daniel Oldham's income by dividing his 10-month reported income by 10 and multiplying it by 12, without including employer-paid pension fund contributions, under N.D. Admin. Code § 75-02-04.1-01(5)(a)(2), and including the in-kind income he received in the form of use of an apartment at less than the customary charge, as required by N.D. Admin. Code § 75-02-04.1-01(6); deducted tax, employee retirement contributions, employee expenses and other deductions allowed by N.D. Admin. Code § 75-02-04.1-01(7); and computed Daniel Oldham's monthly income as $2,848.49, resulting in a child support obligation of $540 per month. We conclude Rebecca Oldham has not shown the amount of child support ordered by the trial court was improperly calculated and has not shown it to be clearly erroneous.

B

[¶ 9] Relying on Lauer v. Lauer, 2000 ND 82, ¶ 4, 609 N.W.2d 450, and Zarrett v. Zarrett, 1998 ND 49, ¶ 8, 574 N.W.2d 855, Rebecca Oldham contends the North Dakota Child Support Guidelines required the trial court to make its child support order effective April 1, 2002, as she requested. Those decisions said the statutory scheme in N.D.C.C. § 14-09-08.4 envisioned periodic reviews of child support orders to ensure that child "support is at all times consistent with the current guidelines amount." Lauer, at ¶ 4; Zarrett, at ¶ 8. "However, `[a] decision's precedential value is measured by the context of its particular facts.'" Wanner v. North Dakota Workers Comp. Bureau, 2002 ND 201, ¶ 21, 654 N.W.2d 760 (quoting In re C.R.M., 552 N.W.2d 324, 326 (N.D.1996)). Lauer and Zarrett involved motions to modify child support after a child support order had been entered. Those decisions do not require a trial court to make a child support obligation retroactive to a time before a child support order was entered. Nor has Rebecca Oldham drawn our attention to any other decision, statute, or provision in the Child Support Guidelines requiring retroactive imposition of a child support obligation in the guideline amount.

[¶ 10] Had the court not specified a beginning date, the starting date for Dennis Oldham's child support obligation would have been December 1, 2002. Section 14-09-08.3, N.D.C.C., says unless a commencement date is specified in a court's order, "a judgment or order requiring the payment of child support is effective as to the child in the month in which the order is signed." In its December 9, 2002, findings of fact, conclusions of law, and order for judgment, the district court specified December 1, 2002, as the effective date of Dennis Oldham's child support obligation. The trial court found:

36. The parties separated on January 15, 2002. [Daniel] continued to pay one-half of the childcare bill, $160.00 per month, for total payments of $1,610.00. In addition, [Daniel] paid [Rebecca] $3,949.76 directly, for total payments related to support of the child in the amount of $5,559.76. In addition, [Daniel] continued to pay for insurance on [Rebecca's] vehicle until the lease expired in September 2002. The Court finds that [Daniel] has met his support obligation for the minor child.

We conclude that finding is not clearly erroneous.

C

[¶ 11] We conclude the trial court's child support determinations are not clearly erroneous.

IV

[¶ 12] We will briefly address the other issues Rebecca Oldham has raised in this appeal.

A

[¶ 13] Rebecca Oldham contends Daniel Oldham's overnight visitation with the parties' child should have been limited to two nights in each nine-day period. After a custody decision has been made, visitation is governed by N.D.C.C. § 14-05-22, which authorizes a trial court to "grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child." Visitation is a right of the child and is presumed to be in the child's best interest. Schmidt v. Schmidt, 2003 ND 55, ¶ 14, 660 N.W.2d 196. "A trial court's decision on visitation is a finding of fact that will not be reversed unless it is clearly erroneous." Id. "A trial court's findings of...