Rohr v. Rohr

• Decision Date: 01 April 1994
• Docket Number: No. 20067,20067
• Citation: Rohr v. Rohr, 126 Idaho 1, 878 P.2d 175 (Idaho App. 1994)
• Parties: Teresa Ann ROHR, nka Teresa Ann Lenhart, Plaintiff-Appellant, v. William Michael ROHR, Defendant-Respondent.
• Court: Idaho Court of Appeals

Page 175

878 P.2d 175

126 Idaho 1

Teresa Ann ROHR, nka Teresa Ann Lenhart, Plaintiff-Appellant, v. William Michael ROHR, Defendant-Respondent.

No. 20067.

Court of Appeals of Idaho.

April 1, 1994.

Rehearing Denied May 17, 1994.

Petition for Review Denied Aug. 23, 1994.

John B. Kugler, Pocatello, argued, for appellant.

Dial, Looze & May, Pocatello, for respondent. Gregory C. May, argued.

LANSING, Judge.

This is a child support modification proceeding. Appellant Teresa (Rohr) Lenhart sought to modify the child support provisions of the parties' 1986 divorce decree. Her petition for modification was initially dismissed, but that dismissal was reversed on appeal. On remand, the magistrate modified the divorce decree prospectively, increasing the child support to be paid by William Rohr, effective as of April 1, 1991. Teresa appeals, asserting that the magistrate erred in not making the modification effective retroactively from the date of her petition for modification in 1987. Because we find a portion of the magistrate's findings to be unsupported by substantial and competent evidence, we vacate the magistrate's order and remand this case for reconsideration of the magistrate's findings and conclusions.

I. FACTS

The factual and procedural history of this case is set forth in the opinions of this Court and the Idaho Supreme Court on the prior appeals, Rohr v. Rohr, 118 Idaho 689, 800 P.2d 85 (1990) and Rohr v. Rohr, 118 Idaho 698, 800 P.2d 94 (Ct.App.1989). Therefore, we will give only a brief description here.

Teresa and William Rohr divorced in July 1986. Their daughter, Shambray, was then six years old. Teresa was granted primary physical custody of Shambray. The divorce decree ordered that William pay $190 per month in child support. William filed a petition to modify the decree in February 1987. Teresa responded, moved to have William held in contempt for failure to pay all child support due, and eventually cross-petitioned for a modification of the child support provision of the divorce decree. The magistrate found that William was not delinquent in his payments and therefore denied Teresa's motion for contempt. Both parties' petitions for modification of the decree were dismissed, and Teresa appealed. The Supreme Court affirmed the magistrate's order denying Teresa's contempt motion, but reversed the dismissal of her petition for a modification of the child support provisions of the decree. The case was remanded to the magistrate for consideration of the merits of Teresa's petition.

Following a trial in April 1991, the magistrate found that a substantial and material change of circumstances occurred in the year 1991 when Shambray became a pre-teen. The magistrate determined that in the future, Shambray's needs would be greater. That increased need, coupled with both parents' increased ability to pay, was found to merit a change in the decree. The magistrate modified the decree as of April 1, 1991, requiring William to pay $384 per month for child support from that date forward. The magistrate further concluded that between the years 1986 and 1991 there had been no substantial and material change of circumstances warranting a retroactive modification of the divorce decree. Teresa appeals the modification decree, arguing that the magistrate should have increased the rate of child support retroactively from July 1987, the date of Teresa's petition for modification.

II. STANDARD OF REVIEW

A person seeking modification of a divorce decree provision for child support must show a substantial and material change of circumstances occurring after the last order affecting the support obligation. I.C. § 32-709. When presented with such a request, the trial court must first determine whether a substantial, material change of circumstances has occurred warranting a modification. If a modification is found to be justified, the trial court must then determine the amount of the modification, considering all relevant factors, especially those enumerated in I.C. § 32-706. Howard v. Mecham, 117 Idaho 542, 543, 789 P.2d 538, 539 (Ct.App.1990). The burden of proof is upon the party seeking the modification. Id.

The decision to modify an award of support for a minor child is committed to the sound discretion of the trial court. Absent an abuse of that discretion, such a decision will not be set aside. Yost v. Yost, 112 Idaho 677, 680, 735 P.2d 988, 991 (1987); Embree v. Embree, 85 Idaho 443, 450, 380 P.2d 216, 221 (1963); Fish v. Fish, 67 Idaho 78, 84, 170 P.2d 802, 805 (1946). On appeal we are required to review the trial record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. Lang v. Lang, 109 Idaho 802, 804, 711 P.2d 1322, 1324 (Ct.App.1986); Gardner v. Gardner, 107 Idaho 660, 662, 691 P.2d 1275, 1277 (Ct.App.1984). If the findings are not supported by the evidence, an abuse of discretion has occurred. Biggers v. Biggers, 103 Idaho 550, 555, 650 P.2d 692, 697 (1982).

III. DISCUSSION

Teresa takes issue with many of the findings of fact upon which the magistrate based his conclusion that there was no substantial change in circumstances that would call for a child support increase until 1991. Teresa challenges some findings as being unsupported by the evidence and also complains of the magistrate's omission to make certain other findings. We consider each of her challenges below.

Changes in Husband's Earnings

The magistrate found that William's annual gross earnings from 1986, the year of the divorce, through 1990 were as follows:

1986  $24,141
                1987   28,493
                1988   28,861
                1989   32,337
                1990   32,324
                

This finding is in conformity with the uncontroverted evidence presented at trial. However, the magistrate made further findings of fact that William's hourly salary had been frozen from 1986 through 1990 and that the increases in William's gross income were due to special jobs and overtime work. Teresa contends, and we agree, that these findings do not comport with the evidence.

William testified that he received an unspecified pay raise in November 1986, after the divorce decree, and that thereafter, apparently in January 1987, his hourly rate increased from $11.45 to $13.42. At that time he changed jobs from the production department to the warehouse at his place of employment, and the warehouse work was paid at the higher rate. The evidence shows that the wage freeze to which the magistrate's finding refers was for the period of November 1987 to November 1990, not 1986 to 1990. Thus, the wage freeze did not take effect until after William had received at least two post-divorce wage increases. Consequently, the magistrate's findings that William's wages were frozen from 1986 through 1990 and that all increases in his gross income were due to special jobs and overtime are not supported by substantial and competent evidence.

Based upon these erroneous factual findings, the magistrate rendered a conclusion of law that:

"Defendant's employment did not change, but due to overtime, his income increased from $24,141 to $28,493, an increase of $4,720 over the prior year or 19.55% ... This change in and of itself is not sufficient to justify a modification." ¹

Hence, the erroneous findings were central to the magistrate's decision that a substantial change of circumstances had not occurred in 1987. The magistrate's conclusion that this change in earnings was not sufficient to warrant a child support increase may have been influenced by a perception that income from overtime work and special projects is irregular, unpredictable and impermanent, unlike a fixed change in a wage rate. These erroneous findings of fact may have affected the magistrate's ultimate conclusion that there was no substantial and material change of circumstances that justified a modification of child support until April 1991. Therefore, because the magistrate misconstrued important evidence, the modification decree must be vacated and the case remanded for reconsideration by the magistrate.

Dependency Deduction

Next, Teresa contends that the magistrate ought to have made a finding or conclusion to the effect that a ninety percent increase in the income tax deduction available to William for claiming Shambray as a dependent, caused by changes in tax law, was "a substantial increase." We decline to rule that such a conclusion is necessary. In evaluating requests for modification of child support, the issue is not whether any one factor, taken alone, has changed substantially, but rather, whether the parties' circumstances as a whole have changed substantially. It is not necessary for the magistrate to characterize the substantiality of the alteration in each item or component under consideration. With regard to the dependency deduction, the magistrate calculated that the actual benefit to William, in the form of tax relief, was $19.33 per month in 1987, and that this amount increased by $2.33 per month in 1989 and $1.87 per month in 1990. This is a factor to be considered by the magistrate on remand, along with all other factors, in redetermining whether the totality of changes in the parties' financial positions warranted a child support increase prior to April 1991.

Union Steward Compensation

Teresa also asserts that the magistrate erroneously failed to make a finding addressing supplemental income that William received for service as a union steward. The evidence indicated that for such service William received twenty-five to thirty dollars per month as reimbursement for his union dues, which were deducted from his paycheck each month. While this reimbursement of union dues might properly be considered income because it offset what would otherwise be a monthly expense, it did not represent a change of condition occurring after the divorce. The evidence established that William's pre-divorce income also...