RAMSEY COUNTY SOCIAL SERVICE v. Kamara, 20020174.
| Decision Date | 04 December 2002 |
| Docket Number | No. 20020174.,20020174. |
| Citation | 2002 ND 192,653 N.W.2d 693 |
| Parties | The RAMSEY COUNTY SOCIAL SERVICE BOARD, and the North Dakota Department of Human Services, as assignees of Jane Kamara, and Jane Kamara, individually, Plaintiffs and Appellees, v. Abdul KAMARA, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Abdul Kamara (submitted on brief), pro se, Bismark, N.D., for defendant and appellant.
Mary Christianson Berg (submitted on brief), Devils Lake, N.D., for plaintiffs and appellees.
[¶ 1] Abdul Kamara appeals from the district court's Order Denying Modification of Child Support. We affirm.
[¶ 2] Appellant, Abdul Kamara, was arrested in September of 2000, convicted, and incarcerated, leaving his wife unable to provide for the financial needs of their four children. As a result, Kamara's wife applied for and received public assistance benefits from July 2001 to March 2002.
[¶ 3] On March 21, 2002, a hearing was held to establish Kamara's child support and to determine Kamara's obligation to reimburse the Ramsey County Social Service Board ("Social Service Board") and the North Dakota Department of Human Services for public assistance benefits provided. The judicial referee ordered Kamara to make child support payments in the amount of $264.00 per month, which would be reduced to $232.00 per month when there remained only three children to be supported. He also ordered Kamara to reimburse the Social Service Board and the Department of Human Services for the $2,120.00 of public assistance benefits paid to his children. Kamara did not timely request a review of the judicial referee's findings and order. See N.D. Sup.Ct. Admin. R. 13, § 11(a). Judgment was entered May 7, 2002.
[¶ 4] On May 23, 2002, Kamara filed a document titled "Request for Review of Arrearages of Child Support: Motion for Modification of the Amount of Child Support." The district court issued its Order Denying Modification of Child Support on June 25, 2002, stating that Kamara had failed to show the requisite material change of circumstances necessary to modify child support within one year of the support order. Kamara appeals from the Order Denying Modification of Child Support.
[¶ 5] Kamara asserts that he is entitled to a reduction in his monthly child support payments. Specifically, he argues that it was error for the judicial referee to impute minimum wage income when calculating his child support obligations because he is incarcerated and earning less than minimum wage. Kamara also claims that he should not have to pay back the public assistance benefits that were paid to his children. We disagree with Kamara's arguments.
[¶ 6] When reviewing a child support order, this Court applies a de novo standard of review for questions of law, a clearly erroneous standard of review for questions of fact, and an abuse of discretion standard of review for discretionary matters. Shaw v. Shaw, 2002 ND 114, ¶ 17, 646 N.W.2d 693. The district court's determination of whether a material change of circumstances has occurred is a finding of fact and, therefore, will not be reversed unless clearly erroneous. See Hager v. Hager, 539 N.W.2d 304, 305 (N.D.1995)
; see also N.D.R.Civ.P. 52(a). 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, the Court is left with a definite and firm conviction that a mistake has been made. See Logan v. Bush, 2000 ND 203, ¶ 8, 621 N.W.2d 314.
[¶ 7] Section 14-09-08.4, N.D.C.C., provides for the review of an existing child support order. It states in pertinent part: "If a motion or petition for amendment is filed within one year of the entry of the order sought to be amended, the party seeking amendment must also show a material change of circumstances." N.D.C.C. § 14-09-08.4(4) (Supp.2001). Because Kamara's motion seeking modification of the child support order was brought within one year of its entry, Kamara has the burden of establishing a material change of circumstances before any modification of the order can take place. If Kamara had timely sought review of the judicial referee's decision, he would not have needed to show a material change of circumstances but, rather, the district court would have reviewed it under the clearly erroneous standard. See State ex rel. Melling v. Ness, 1999 ND 73, ¶ 6, 592 N.W.2d 565
. The district court found that Kamara had not established a material change of circumstances and, therefore, denied his request to modify child support.
[¶ 8] In Kamara's motion for modification of child support, he states, "[i]t is the contention of this petitioner, that his incarceration constitutes a change of circumstances sufficient to warrant the modification of his [c]hild [s]upport [o]bligation, pursuant to N.D.C.C. chp. 14-09-08.9[sic]." However, the record reflects that Kamara was incarcerated and earning less than minimum wage at the time the child support order was initially entered. There is no evidence to suggest that any material change of circumstances, financial or otherwise, had occurred in the time between the court's issuance of the original child support order and Kamara's request for modification of child support. We conclude the district court's determination that no material change of circumstances had occurred was not clearly erroneous.
[¶ 9] Even if Kamara could show a material change of circumstances, his argument would fail. Kamara contends that his child support obligation was miscalculated. He claims a minimum wage income should not have been imputed because he is earning less than minimum wage working in the prison library. This Court has held that "[t]hough arguably the [child support] guidelines do not contemplate the situation of an incarcerated obligor, it is nonetheless necessary to apply them and develop a workable solution." Surerus v. Matuska, 548 N.W.2d 384, 387 (N.D.1996).
[¶ 10] There is a rebuttable presumption under N.D.C.C. § 14-09-09.7 that the amount of support designated in the child support guidelines is correct. See Dufner v. Dufner, 2002 ND 47, ¶ 22, 640 N.W.2d 694
. Further, under N.D.C.C. § 14-09-08.4, the party seeking modification of a child support order has the burden of proving that the existing level of support is not in conformity with the guidelines. See Henry v. Henry, 2000 ND 10, ¶ 7, 604 N.W.2d 234.
[¶ 11] According to the guidelines, any person who earns less than "[o]ne hundred sixty-seven times the federal hourly minimum wage" is presumed to be underemployed. N.D. Admin. Code § 75-02-04.1-07(2)(b). When calculating the child support obligation of an underemployed person, income is to be imputed in one of the following three ways:
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