Sonnenberg v. Sonnenberg, 20090353.

Citation2010 ND 94,782 N.W.2d 654
Decision Date17 May 2010
Docket NumberNo. 20090353.,20090353.
PartiesPriscilla SONNENBERG, n/k/a Priscilla Sauer, Plaintiff and Appellantv.Terry SONNENBERG, Defendant and Appellee.
CourtUnited States State Supreme Court of North Dakota

Daniel H. Oster (argued), Bismarck, ND, for plaintiff and appellant.

Suzanne M. Schweigert (argued), Bismarck, ND, for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Priscilla Sonnenberg, n/k/a Priscilla Sauer, appeals from an amended order and judgment. We hold the district court erred as a matter of law by failing to comply with the child support guidelines and reverse and remand the court's calculation of the parties' child support obligations. We affirm the district court's denial of attorney fees.


[¶ 2] Sauer and Terry Sonnenberg married in 1993 and have two children together, J.S. and K.S. The parties divorced in 2002. In accordance with the parties' stipulation, the district court entered a divorce judgment awarding Sauer primary residential responsibility for both children, granting Sonnenberg reasonable parenting time, and ordering Sonnenberg to pay $751 per month in child support. On September 30, 2008, J.S. told Sauer she wanted to move in with Sonnenberg. Sauer contacted Sonnenberg to ask whether J.S. could move into his residence, Sonnenberg agreed, and J.S. moved in on October 1, 2008. After J.S. moved into his home, Sonnenberg continued to pay $751 per month in child support, as provided by the divorce judgment.

[¶ 3] On March 19, 2009, Sonnenberg filed a motion to modify the divorce judgment under N.D.R.Ct. 3.2. Sonnenberg requested the district court award him primary residential responsibility for J.S. and modify the parties' child support obligations. Sonnenberg did not file a motion for relief from the divorce judgment under N.D.R.Civ.P. 60(b)(vi). Sauer filed a counter-motion, agreeing to the district court awarding Sonnenberg primary residential responsibility for J.S. and modifying the parties' child support obligations, but requesting the court award her attorney fees. In August 2009, the parties entered a stipulation regarding primary residential responsibility and parenting time for both of their children.

[¶ 4] The district court held a hearing in September 2009 primarily regarding the proper amount of the parties' child support obligations, as well as the date from which the modified obligations should apply. Sauer, Sonnenberg, and J.S. all testified at the hearing. When J.S. moved into Sonnenberg's home, Sauer stated she “asked [Sonnenberg] for a cooling off period so that J.S. could decide for sure if this is exactly what she wanted.” Sauer testified she wanted to wait until after the cooling off period before modifying child support, and she did not agree to modification beginning October 1, 2008. Sauer stated she presently resides with her new husband, Jason Sauer, and three children, including the parties' daughter, K.S. She stated Jason Sauer is the father of one of the children living in their home, and she receives child support from the father of the third child. Sauer testified she has worked in home daycare since 1997, never earning more than federal minimum wage.

[¶ 5] Sonnenberg testified that, when J.S. moved into his home on October 1, 2008, he and Sauer agreed to modify his child support obligation beginning that day. On cross-examination, Sonnenberg acknowledged Sauer requested a “cooling off period,” but Sonnenberg insisted he and Sauer agreed to modification beginning October 1st:

Q: Isn't it true that in September of last year you wanted the child support obligation to change on October 1st, correct?
A: Correct.
Q: And [Sauer] specifically stated you're going to wait six months to see if [J.S. moving into your home] worked out?
A: [Sauer] asked me for a cooling off period, which I denied. I said I did not want a cooling off period.
Q: Okay. So she didn't agree and you didn't agree?
A: To the cooling off period, correct.
Q: Okay. So she didn't agree to the six-month time period for or when the date child support would become effective either then?
A: She agreed that the child support would go till October 1st. The cooling off period was simply it was supposed to be six months in case J.S. changed her mind and wanted to come back and live with [Sauer], then all of this would be a moot point. The fact is J.S. did come live with me and has lived with me ever since. Therefore, the original conversation of going back to October 1st still stands.

[¶ 6] Sonnenberg also testified about recent changes in his employment and income. Sonnenberg stated he began working at King Coal Furnace Corporation (King Coal) on July 1, 2009, earning $37,000 per year. Sonnenberg stated he previously worked at Mitzel Builders for seven-plus years. Sonnenberg said he voluntarily left Mitzel Builders, even though he would earn less at King Coal, because Mitzel had become an increasingly negative work environment, and the company was having financial difficulties. Sonnenberg stated he also earns “about $3,800” annually from Nodak Sportsman's Club. During 2009, Sonnenberg stated he earned $1,000 from J & E Construction, though he did not anticipate earning additional income from the company, and $14,000 on the sale of a vehicle. Sonnenberg testified he also earns income from contract for deed payments. Sonnenberg stated he currently resides with J.S. and his girlfriend, who contributes approximately $600 per month towards their household expenses.

[¶ 7] J.S.'s testimony corroborated both parties. J.S. stated she was present when the parties discussed modifying Sonnenberg's child support obligation, and she recalled Sauer agreeing “that October 1st [2008] would be the start of child support because that's when I moved [into Sonnenberg's home].” J.S. also testified Sauer mentioned a “six-month trial period” during this conversation.

[¶ 8] At the district court's request, the parties submitted post-hearing letters outlining their child support proposals. Sonnenberg and Sauer agreed the district court should offset their child support obligations under N.D. Admin. Code § 75-02-04.1-03, because both would have primary residential responsibility for one of their children. The parties also agreed the district court should impute income to Sauer under N.D. Admin. Code § 75-02-04.1-07(3)(a), because she earns less than the federal minimum wage. In her letter, Sauer argued the district court should also impute income to Sonnenberg based upon his earning capacity under N.D. Admin. Code § 75-02-04.1-7(10), because he voluntarily quit his job at Mitzel Builders and accepted lower-paying employment at King Coal. Sauer claimed Sonnenberg's income should include money his girlfriend contributes to their household expenses. Finally, Sauer argued the district court should order the modified child support obligations effective March 17, 2009, the date Sonnenberg filed the motion to modify the divorce judgment. In his letter, Sonnenberg argued the district court should find the parties agreed to modify their child support obligations beginning October 1, 2008, and the district court should therefore order modification retroactive to that date. Because he had continued to pay child support to Sauer under the original divorce judgment, Sonnenberg also requested the district court order Sauer repay him for excess amounts she received since that date. In calculating his prospective child support obligation, Sonnenberg claimed the district court should use his income from King Coal and Nodak Sportman's Club because his income at Mitzel Builders was not an accurate reflection of his future earnings.

[¶ 9] The district court issued an amended order and judgment awarding Sonnenberg primary residential responsibility for J.S. With regard to child support, the amended order and judgment largely adopted Sonnenberg's arguments and calculations.

The district court found “Sonnenberg made a reasonable decision to change his employment [to King Coal] in order to [e]nsure that he would continue to be employed.” Therefore, the district court rejected Sauer's argument that it should impute income to Sonnenberg based upon his earning capacity. The district court also rejected Sauer's argument that Sonnenberg's income should include money his girlfriend contributes towards their household expenses. The district court stated: “There is no evidence to suggest Terry Sonnenberg is receiving income from his girlfriend. The situation is more like a situation in which a roommate pays a fair share of the household expenses.”

[¶ 10] After offsetting each party's child support obligation, the district court ordered Sonnenberg to pay $258 per month in child support. The amended judgment stated this amount was “based on [Sonnenberg's] gross annual income of $39,700, and [Sauer's] gross average annual income of $15,080.” The district court provided no further explanation for how it calculated the parties' child support obligations or incomes. The district court also ordered the modification retroactive to October 1, 2008. The district court stated it found “the parties agreed to modification of Terry Sonnenberg's child support obligation at the time when [J.S.] began residing with him.” Because the district court modified Sonnenberg's obligation retroactive to October 1st, and he had continued to pay $751 per month under the original divorce judgment, the district court ordered Sauer to repay Sonnenberg $5,401 for the excess child support he had paid since that date. Finally, the district court denied Sauer's request for attorney fees, simply stating: “No attorney fees will be awarded.” Sauer now appeals, arguing the district court erred in modifying the parties' child support obligations and denying her request for attorney fees.


[¶ 11] In Fleck v. Fleck, 2010 ND 24, ¶ 13, 778 N.W.2d 572, this Court explained its review of a district court's child support determination:

‘Child support determinations involve questions of law which are subject to

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