Ruscheinsky v. Ulrich, 990388.

• Citation: 612 N.W.2d 283,2000 ND 133
• Decision Date: 29 June 2000
• Docket Number: No. 990388.,990388.
• Parties: Iola RUSCHEINSKY, Director, Grant County Social Service Board, as assignee for Joely Will, f/k/a Joely Hauck, and Joely Will, f/k/a Joely Hauck, Plaintiffs and Appellants, v. Timothy L. ULRICH, Defendant and Appellee.
• Court: North Dakota Supreme Court

612 N.W.2d 283

2000 ND 133

Iola RUSCHEINSKY, Director, Grant County Social Service Board, as assignee for Joely Will, f/k/a Joely Hauck, and Joely Will, f/k/a Joely Hauck, Plaintiffs and Appellants, v. Timothy L. ULRICH, Defendant and Appellee.

No. 990388.

Supreme Court of North Dakota.

June 29, 2000.

Lloyd C. Suhr, Special Assistant State's Attorney, Child Support Enforcement, Bismarck, N.D., for plaintiffs and appellants.

Timothy Ulrich, pro se, Elgin, N.D., no appearance.

NEUMANN, Justice.

[¶ 1] Iola Ruscheinsky, Grant County Social Services Board Director, as assignee for Joely Will, formerly known as Joely Hauck, and Joely Will, formerly known as Joely Hauck ("Social Services") appeal from the trial court's judgment finding Timothy Ulrich's child support arrears totaled $733.10. We reverse and remand.

[¶ 2] On August 1, 1983, the trial court entered a default paternity judgment against Ulrich. The judgment awarded Social Services $1,502.10 for recovery of public assistance expended for the child and ordered Ulrich to pay a $150 per month child support obligation beginning August 10, 1983. On July 19, 1993, Social Services renewed the 1983 judgment for public assistance with a remaining balance of $883.10, but did not enter or renew any other judgments.

[¶ 3] On August 27, 1998, and October 4, 1999, the trial court held order to show cause hearings because Ulrich failed to pay his child support arrearage. Social Services introduced a certified copy of the State Disbursement Unit ledger ("SDU ledger") showing a $4,733.10 child support arrearage. The trial court found the total arrearage was $733.10, the balance due on the renewed public assistance judgment, minus Ulrich's subsequent payments. Social Services moved for reconsideration. The trial court denied the motion. Social Services appeals.

[¶ 4] Social Services argues the trial court's finding that Ulrich's arrears totaled $733.10 was clearly erroneous as it was based on an erroneous view of the law and was not supported by the record. Social Services submitted an SDU ledger showing the child support arrears totaled $4,733.10, and now argues none of the arrears have been barred by the statute of limitations or canceled.

[¶ 5] A trial court's findings of fact will not be set aside unless clearly erroneous. 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 there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence there is a definite and firm conviction a mistake has been made. Fox v. Fox, 1999 ND 68, ¶ 7, 592 N.W.2d 541.

[¶ 6] To determine whether the trial court erred, we must review the statutory history of child support orders and judgments for child support. Before 1987, a due and unpaid child support order did not constitute a judgment until it was adjudicated through a motion proceeding or separate action. Fuson v. Schaible, 494 N.W.2d 593, 595, 597 (N.D.1992). In 1987, the North Dakota Legislative Assembly enacted N.D.C.C. § 14-08.1-05, providing that any child support order is a judgment by operation of law on and after the date it is due and unpaid, and becomes recordable in the judgment book under Rule 58, N.D.R.Civ.P.1987 N.D. Sess. Laws ch. 181, § 1. The statute became effective March 23, 1987; it was not retroactive. 1987 N.D. Sess. Laws ch. 181, § 9; Baranyk v. McDowell, 442 N.W.2d 423, 424 (N.D. 1989). The requirement for entry under Rule 58, N.D.R.Civ.P., was enacted to avoid an automatic docketing of the judgment. Hearing on S.B. 2432 Before the Human Services and Veteran Affairs Committee, 50th N.D. Legis. Sess. (January 29, 1987) (testimony of Blaine L. Nordwall, N.D. Dept. of Human Services). Automatic docketing would have created "an onerous imposition of numerous monthly docket entries for the State's clerks of court" and the need to find the "multitudinous docket entries in each and every real estate transaction." Id.

[¶ 7] In 1997, the legislature amended N.D.C.C. § 14-08.1-05, providing any child support order constitutes a judgment by operation of law on and after the date it is due and unpaid, whether accrued before or after the effective date of the amendment. 1997 N.D. Sess. Laws ch. 404, § 5. The amendment also replaced the requirement that the judgment be entered under Rule 58, N.D.R.Civ.P., with a requirement that the order "must be entered in the judgment docket, upon filing by the judgment creditor or the judgment creditor's assignee of a written request accompanied by a verified statement of arrearage or certified copy of the payment records of the clerk of district court maintained under section 14-09-08.1 and an affidavit of identification of the judgment debtor." Id. This amendment was intended "to permit timely enforcement of the judgment" and address "problems with the current practice of some clerks and judges which require advance notice to the delinquent obligor before permitting enforcement of the judgment." Hearing on H.B. 1226 Before the Human Services Committee, 55th N.D. Legis. Sess. (January 21, 1997) (testimony of William Strate, Director of Child Support Enforcement, N.D. Dept. of Human Services). The amendment became effective July 1, 1997. 1997 N.D. Sess. Laws ch. 404, § 87.

[¶ 8] In 1999, the legislature again amended N.D.C.C. § 14-08.1-05, providing: "[t]he due and unpaid payments and any judgment entered in the judgment docket pursuant to this section are not subject to the statutes of limitations provided in chapter 28-01, nor may such judgment be canceled pursuant to section 28-20-35."¹ 1999 N.D. Sess. Laws ch. 140, § 1. This amendment was intended to "allow collection of unpaid child support throughout the life of the person who fails to pay his or her support and then through the probate of that person's estate." Hearing on S.B. 2288 Before the Human Services Committee, 56th N.D. Legis. Sess. (January 27, 1999) (testimony of Senator Wayne Stenehjem). The amendment became effective April 2, 1999. 1999 N.D. Sess. Laws ch. 140, § 2.

[¶ 9] Ordered, due and unpaid child support, therefore, falls into one of four historical categories: (1) before March 23, 1987, ordered child support that was due and unpaid did not constitute a judgment until adjudicated through a motion proceeding or separate action, and was subject to the statute of limitations and to cancellation under N.D.C.C. § 28-20-35; (2) ordered support that became due after March 23, 1987, constituted a judgment by operation of law, was recordable in the judgment book under Rule 58, N.D.R.Civ. P., and was subject to the statute of limitations and cancellation; (3) after July 1, 1997, all ordered child support, regardless of when it became due, constituted a judgment by operation of law upon filing a written request and documentation, and was subject to the statute of limitations and cancellation; and (4) after April 2, 1999, all ordered support, regardless of when it became due and unpaid, constituted a judgment by operation of law upon filing a written request and documentation, and the statute of limitations and cancellation were expressly inapplicable.

[¶ 10] Prior to March 23, 1987, Ulrich's ordered, due and unpaid child support did not constitute a judgment because Social Services had not initiated an enforcement motion proceeding or separate action to reduce the unpaid obligations to judgment. Ulrich's obligations that became due and unpaid after March 23, 1987, did constitute judgments by operation of law under N.D.C.C. § 14-08.1-05. And, finally, on July 1, 1997, all his ordered, due and unpaid child support, regardless of when it had become due, constituted a judgment by operation of law. However, simply because Ulrich's obligations constituted judgments by operation of law does not necessarily mean Social Services can now collect on the judgments. We must still determine whether any of the claims have been barred by the statute of limitations or canceled by N.D.C.C. § 28-20-35.

[¶ 11] Generally, a child support claim is "[a]n action upon a judgment or decree of any court of the United States or of any state or territory within the United States" and subject to a ten-year statute of limitations. See N.D.C.C. § 28-01-15; Fuson, at 597. The limitation period begins when the duty to support terminates, not on each individual payment's due date. Fuson, at 598-99, Levine, J., dissenting (dissenting opinion became the majority opinion on the statute of limitations issue); see id. at 594. Ulrich's child support duty terminated when the child reached the age of majority on October 18,...