Shaver v. Kopp

Decision Date19 March 1996
Docket NumberNo. 950173,950173
Citation545 N.W.2d 170
PartiesTeri E. SHAVER, f/k/a Teri E. Kopp, Plaintiff, Appellant and Cross-Appellee, v. James A. KOPP, Defendant, Appellee and Cross-Appellant. Civil
CourtNorth Dakota Supreme Court

Thomas M. Tuntland (argued), Mandan, for plaintiff, appellant and cross-appellee.

Daniel J. Chapman (argued), of Chapman & Chapman, Bismarck, for defendant, appellee and cross-appellant.

MESCHKE, Justice.

Teri E. Shaver appealed from an amended decree modifying child support for children in her custody. James A. Kopp, the obligor, cross-appealed. We reverse and remand for further proceedings.

Shaver and Kopp were married and had two sons, Jeremy James, born December 29, 1975, and Travis Michael, born July 27, 1977. When the couple divorced in 1983, the trial court placed custody of the two children with Shaver, and ordered Kopp to pay $300 monthly for child support. Kopp later remarried, divorced, and is obligated to pay $582 monthly to support children of that second marriage.

In early 1994, Shaver moved for "periodic review of child support" and also asked the trial court to extend support for Jeremy past his eighteenth birthday while he continued to attend high school. Kopp opposed the motions and did not respond to requests for admissions or answer interrogatories. After Shaver moved to compel, Kopp asserted she had no right under NDCC 14-09-08.4 to seek an increase in child support.

Before a June 1994 hearing, Shaver served Kopp with a subpoena duces tecum to produce his pay records. Kopp moved for a protective order, alleging Shaver had no right to inspect Kopp's records. After the June hearing, the trial court found that Jeremy was 18 years old, had attended high school, and had graduated on June 5, 1994. The court ruled that Kopp owed Jeremy a duty of support for the months of January through June 1994. The court denied Kopp's motion for a protective order, granted Shaver's motion to compel, denied Shaver's request for attorney fees, and ordered extension of Kopp's obligation to support Jeremy.

In August 1994, Shaver amended her motion for increased child support and a hearing was held in December 1994. In February 1995, the trial court issued an opinion that excluded Kopp's overtime and tax-deferred savings from his income for computing child support. An amended decree was entered in April 1995 ordering Kopp to pay "$469.00 per month for two children and $346.00 per month for one child as of the 1st day of February, 1994." Shaver moved to amend the decree under NDRCivP 60 because it did not include the continuation of support for Jeremy from January through June 1994. The trial court granted the motion and a corrected decree was entered in May 1995. Shaver appealed and Kopp cross-appealed.

I. PRIVATE ENFORCEMENT

Kopp asserts the trial court should have dismissed Shaver's motion to review child support under NDCC 14-09-08.4 because Shaver, as a private individual and not a child support agency, was not entitled to use that procedure. NDCC 14-09-08.4(3) directs:

If a child support order sought to be amended was entered at least one year before the filing of a motion or petition for amendment, the court shall order the amendment of the child support order to conform the amount of child support payment to that required under the child support guidelines, whether or not the motion or petition for amendment arises out of a periodic review of a child support order, and whether or not a material change of circumstances has taken place, unless the presumption that the correct amount of child support would result from the application of the child support guidelines is rebutted. 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.

(Emphasis added). Even though this subdivision thus does not confine its application to a motion by a child support agency, Kopp contends that the numerous references to "child support agency" in other subdivisions of the statute convey an intent that a motion under subdivision 3 can be made only by a child support agency. We reject this argument.

The "plain language" of NDCC 14-09-08.4(3) entitled a child support obligor to a review of his child support obligation without showing a material change of circumstances, the court of appeals held in O'Callaghan v. O'Callaghan, 515 N.W.2d 821, 823 (N.D.Ct.App.1994). So too, in Eklund v. Eklund, 538 N.W.2d 182, 186 (N.D.1995), we held that the legislature's 1993 inclusion of the phrase, "whether or not the motion or petition for amendment arises out of a periodic review of a child support order," removed all preconditions for bringing a motion more than a year after an earlier order, "except a request by an obligor or obligee." Although neither decision addressed the specific contention made by Kopp, those decisions clearly presage our conclusion today.

Even if we were to agree with Kopp that NDCC 14-09-08.4(3) is ambiguous because of its placement among other subdivisions referring to a child support agency, we would decline to give it the meaning proposed by Kopp. When we construe an ambiguous statute to ascertain the legislature's intent, we may consider the legislative history of the statute. City of Fargo v. Ness, 529 N.W.2d 572, 575 (N.D.1995). The 1993 amendment to subsection 3 was intended "to assure that the same process is available to all parties" "without regard to the involvement of child support officials." 1993 N.D. Sess. Laws Ch. 152, § 6; Hearing on House Bill 1181 before the House Human Services Committee, January 18, 1993, Written Testimony of Blaine Nordwall, at pp. 5-6. Furthermore, since Kopp's proposed construction might create constitutional questions of equal protection, see Rueckert v. Rueckert, 499 N.W.2d 863, 871 n. 5 (N.D.1993), we will construe the statute to avoid any constitutional conflict. Basin Elec. Power v. N.D. Workers Comp., 541 N.W.2d 685, 689 (N.D.1996). We conclude that Shaver's motion to modify child support was statutorily authorized.

To invoke this statutory provision, a movant must show only "that the 'child support order sought to be amended' was entered more than a year before the motion to amend was brought." Helbling v. Helbling, 541 N.W.2d 443, 445 (N.D.1995). Shaver did that here. The trial court correctly refused to dismiss Shaver's motion on this basis.

II. SERVICE

Kopp asserts that the part of the amended decree continuing support for Jeremy until completion of high school should be reversed because Shaver failed to comply with NDCC 14-09-08.2(2) that requires the clerk of court to serve the affidavit of a person seeking support for children after majority "by first-class mail upon the person owing the duty of support." Kopp acknowledges that the affidavit was served, but by someone other than the clerk of court.

Although Shaver's failure to comply with the statutory requirement is puzzling, Kopp has not shown how he was prejudiced by having the affidavit served by someone other than the clerk of court. Under NDRCivP 61, a court must disregard any error or defect which does not affect the substantial rights of the parties. As in Eklund, 538 N.W.2d at 186, we conclude that this deviation from the service requirement was harmless error.

III. CHILD SUPPORT

Both parties assert that the trial court committed error in determining Kopp's child support obligation. A trial court's findings on a motion to modify child support will not be rejected on appeal unless they are clearly erroneous. NDRCivP 52(a); Iverson v. Iverson, 535 N.W.2d 739, 743 (N.D.1995). As we explained in Mahoney v. Mahoney, 538 N.W.2d 189, 192 (N.D.1995), a finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made.

A.

Shaver asserts that the trial court erred in computing Kopp's child support obligation because it did not include his overtime wages and his employer's contributions to a tax deferred savings plan in Kopp's gross income, and because it used the wrong measure for calculating Kopp's federal income tax obligation. We agree.

At the December 1994 hearing, Shaver called the accounting manager for Kopp's employer, Amoco Oil Refinery (Amoco), who had access to Kopp's pay records. Amoco's manager testified Kopp was paid biweekly, and produced records of 25 of Kopp's 26 pay periods for 1994. Those records showed, as of the 25th pay period, Kopp had taxable earnings of $38,673.51. In addition, Kopp had contributed $4,408.37 to his voluntary tax-deferred savings plan. Amoco matched Kopp's tax-deferred contribution on a dollar-for-dollar basis up to six percent of his income. Amoco thus contributed an additional $2,648.82 for Kopp through his 25th pay period. Amoco's manager indicated Kopp had access to both his and Amoco's contributions, acknowledging that if Kopp withdrew those funds, all taxes would be due, in addition to a 10 percent penalty.

Kopp had tax deductible medical premiums of $812.86 and dental premiums of $252.75. Kopp also received compensation from a labor union for his services as recording secretary. Through December 19, 1994, Kopp had received $2,798.76 in gross wages from the union. Wage and tax statements from tax years 1992 and 1993 showed combined wages from Amoco and the union totaling $44,181.18 and $46,134.16, respectively.

The trial court found Kopp had a 1994 total gross income of $43,439.11. The court excluded Kopp's overtime wages and Amoco's match to his tax-deferred savings in its calculations, reasoning overtime "is an unknown variable for any future payments," and Kopp's tax-deferred savings are "not income" until "drawn upon." The court also applied 28 percent as a "rule of thumb" for calculating Kopp's federal income tax liability.

A finding of...

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    • United States
    • North Dakota Supreme Court
    • July 23, 1997
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