State ex rel. K.B. v. Bauer, 20080092.

Citation2009 ND 45,763 N.W.2d 462
Decision Date02 April 2009
Docket NumberNo. 20080092.,20080092.
PartiesSTATE of North Dakota ex rel. K.B., minor child, Plaintiff and Appellant v. Travis BAUER, Defendant and Appellee.
CourtUnited States State Supreme Court of North Dakota

Marnie Renell Soggie (argued), Special Assistant Attorney General, Child Support Enforcement, Bismarck, N.D., Jackson John Lofgren (on brief), Special Assistant Attorney General, Mandan, N.D., for plaintiff and appellant.

Christopher Glenn Lindblad (argued), Bismarck, N.D., for defendant and appellee.

CROTHERS, Justice.

[¶ 1] The State, through the Regional Child Support Enforcement Unit ("Unit"), appeals from a district court judgment establishing the child support obligation of Travis Bauer. We conclude the district court did not err when it failed to impute income to Bauer based upon the amount he earned from a college internship, but did err in deducting Bauer's visitation expenses directly from his child support obligation. We modify the judgment and, as modified, affirm.


[¶ 2] Bauer is the father of a child, K.B., born out of wedlock in 2003. Through an agreement with K.B.'s mother, Bauer paid for one-half of K.B.'s medical insurance, medical expenses, and day care expenses, and exercised visitation with K.B. on alternating weekends. After K.B.'s mother applied for child support services with the Unit in 2006, the Unit brought this action to establish Bauer's child support obligation.

[¶ 3] At the time of the hearing in September 2007, Bauer was attending school full-time at North Dakota State University ("NDSU") majoring in mechanical engineering. As part of an internship program through the university, he had been employed at Ingersoll-Rand from May 2005 to August 2006 and from May 2007 to August 2007. He received a salary and college credit through the internship program. Between August 2006 and early 2007, Bauer also worked part-time as a sales associate at Sears.

[¶ 4] The district court calculated Bauer's child support obligation for the period from late 2006 to September 2007 based upon his actual income during that time. The parties do not dispute those amounts. The dispute in this case centers upon Bauer's ongoing future child support obligation from the date of the hearing.

[¶ 5] The Unit argued that Bauer was unemployed and that, under the child support guidelines, income must therefore be imputed to him based upon his greatest average gross earnings in twelve consecutive months during the previous three years, which the Unit argued was $41,989.50 earned during a twelve-month period of his first Ingersoll-Rand internship. The Unit contended that imputing this amount resulted in a child support obligation under the guidelines of $492 per month. Bauer argued that the income from Ingersoll-Rand had been earned through a temporary college internship and he could no longer earn that amount. He therefore argued income should be imputed based upon his earnings at Sears, resulting in a child support obligation of $314 per month.

[¶ 6] The district court agreed with Bauer and imputed income based upon Bauer's earnings at Sears, resulting in a child support obligation of $314 per month. The court further concluded Bauer was entitled to reduction of his child support for visitation expenses of $97.50 per month, resulting in a final child support obligation of $217 per month commencing February 29, 2008.


[¶ 7] On appeal, the Unit contends the district court erred as a matter of law when it failed to impute income to Bauer based upon the $41,989.50 he earned during twelve months of his first Ingersoll-Rand internship.

[¶ 8] "Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review." Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. "If the district court fails to comply with the child support guidelines in determining an obligor's child support obligation, the court errs as a matter of law." Serr v. Serr, 2008 ND 229, ¶ 10, 758 N.W.2d 739 (quoting Serr v. Serr, 2008 ND 56, ¶ 18, 746 N.W.2d 416). The interpretation and proper application of a provision of the child support guidelines is a question of law, fully reviewable on appeal. Id. at ¶ 11. "The failure to properly apply the child support guidelines to the facts involves an error of law." Korynta v. Korynta, 2006 ND 17, ¶ 18, 708 N.W.2d 895 (quoting In re N.C.C., 2000 ND 129, ¶ 12, 612 N.W.2d 561). When a matter lies within the district court's discretion, "[a] court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law." Hagel v. Hagel, 2006 ND 181, ¶ 9, 721 N.W.2d 1.

[¶ 9] The Unit contends that, because Bauer was unemployed at the time of the hearing in September 2007, the district court was required to impute income to Bauer based upon his earning capacity under N.D. Admin. Code § 75-02-04.1-07(3), which, at the time this action was commenced, provided:

Except as provided in subsections 4, 5, and 9, gross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross earnings, must be imputed to an obligor who is unemployed or underemployed.

a. A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wage.

b. An amount equal to six-tenths of prevailing gross earnings in the community of persons with similar work history and occupational qualifications.

c. An amount equal to ninety percent of the obligor's greatest average

gross monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided.

The district court agreed with the Unit that the presumptive amount of support under the guidelines, after imputing income under subdivision (c) based upon Bauer's earnings of $41,989.50 at Ingersoll-Rand, would have been $492 per month. The court, however, agreed with Bauer's argument that this presumptive amount had been rebutted under N.D. Admin. Code § 75-02-04.1-09(2)(j) and (1), which provided:

The presumption that the amount of child support that would result from the application of this chapter, except for this subsection, is the correct amount of child support is rebutted only if a preponderance of the evidence establishes that a deviation from the guidelines is in the best interest of the supported children and:

. . . .

j. The reduced ability of the obligor to pay child support due to a situation, over which the obligor has little or no control, which requires the obligor to incur a continued or fixed expense for other than subsistence needs, work expenses, or daily living expenses, and which is not otherwise described in this subsection;

. . . .

l. The reduced ability of the obligor to provide support when calculation of the obligation otherwise reflects consideration of atypical overtime wages or nonrecurring bonuses over which the obligor does not have significant influence or control. . . .

The court agreed with Bauer's contention that his attendance at college was a situation over which he had little or no control that required him to incur continued or fixed expenses reducing his ability to provide support, triggering subdivision (j), and that his internship income from Ingersoll-Rand constituted atypical overtime wages or nonrecurring bonuses over which Bauer did not have significant influence or control, triggering subdivision (l). The court therefore concluded the presumptive amount had been rebutted. Relying upon Bauer's argument that income should be imputed based upon his earnings at Sears, the court determined Bauer's support obligation was $314 under the guidelines.

[¶ 10] We believe the district court reached the right result, but for the wrong reason. "[W]e will not set aside a correct result merely because the district court's reasoning is incorrect if the result is the same under the correct law and reasoning." Sanders v. Gravel Prods., Inc., 2008 ND 161, ¶ 9, 755 N.W.2d 826 (quoting Hanson v. Boeder, 2007 ND 20, ¶ 21, 727 N.W.2d 280).

[¶ 11] We disagree with the district court's conclusions that Bauer's return to school constituted a situation over which he had little or no control requiring him to incur continued or fixed expenses under subdivision (j) and that Bauer's internship earnings constituted atypical overtime wages or nonrecurring bonuses under subdivision (l). The district court has attempted to stretch the language of the guidelines to allow rebuttal of the presumptive amount of child support. However, we do not believe the unusual circumstances occasioned by Bauer's internship earnings provided a basis to rebut the presumptively correct amount under the guidelines. Rather, these circumstances should be considered under the general rules for determining the initial presumptive amount under the guidelines.

[¶ 12] The general instructions for determining the presumptive support amount under the guidelines are set out in N.D. Admin. Code § 75-02-04.1-02. Those general instructions allowed the district court to consider, when initially calculating an appropriate amount under the guidelines, whether Bauer's past earnings history was a reliable indicator of his future ability to provide support to the child:

Calculations made under this chapter are ordinarily based upon recent past circumstances because past circumstances are typically a reliable indicator of future circumstances, particularly circumstances concerning income. If circumstances that materially affect the child support obligation are very likely to change in the near future, consideration may be given to the likely future...

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