State ex rel. Younger v. Bryant

• Decision Date: 16 January 1991
• Docket Number: No. 900212,900212
• Citation: 465 N.W.2d 155
• Parties: STATE of North Dakota, County of Cass, ex rel., Dawn Renee YOUNGER, Plaintiff, Appellee and Cross-Appellant, and Charia Dawn Younger, a minor child, by and through her guardian, Bonnie Johnson, Plaintiff, v. Weldon BRYANT, Jr., Defendant, Appellant and Cross-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 155

465 N.W.2d 155

STATE of North Dakota, County of Cass, ex rel., Dawn Renee YOUNGER, Plaintiff, Appellee and Cross-Appellant and Charia Dawn Younger, a minor child, by and through her guardian, Bonnie Johnson, Plaintiff, v. Weldon BRYANT, Jr., Defendant, Appellant and Cross-Appellee.

Civ. No. 900212.

Supreme Court of North Dakota.

Jan. 16, 1991.

O'Neel Law Office, Fargo, for defendant, appellant and cross-appellee; Michael C. O'Neel (argued).

Mertz Law Office, Fargo, for plaintiff, appellee and cross-appellant; Monty G. Mertz (argued).

ERICKSTAD, Chief Justice.

Weldon Bryant, Jr., appeals from the Third Amended Judgment, dated April 5, 1990, issued by the District Court for the East Central Judicial District, asserting that the Court erred in finding a significant change in circumstances which warranted modification of Bryant's child support obligation and by failing to allocate the child tax exemptions in his favor. Dawn Younger cross-appeals, asserting that the court erred in not allocating the tax exemptions in her favor, by denying her motion to compel Bryant to pay the health insurance cost of the minor child, and by denying her costs and attorney's fees. We affirm in part, reverse in part, and remand.

On March 24, 1986, a judgment was entered establishing child support to be paid by Bryant in the sum of $175 per month commencing in April 1986. The original judgment also provided that the federal tax dependency exemption for the child would be allocated to both parties, alternating every other year. The judgment was amended on January 3, 1990, in order to correct a clerical error. On January 3, 1990, Younger moved to amend that judgment to secure an increase in child support, require Bryant to pay the health insurance and related costs of the minor child, and to gain the exclusive right to claim the minor child as a dependency exemption for federal income tax purposes.

On April 5, 1990, the district court entered judgment increasing Bryant's support obligation from $175 per month to $451. The district court found that a 5 percent increase in Bryant's income, raising Bryant's net monthly income to $1,803.71, coupled with a large disparity between the original obligation and the amount mandated by the child support guidelines constituted a "substantial [material] change in circumstances" which warranted the increase in support payments. All other parts of Younger's motion to amend were denied.

Bryant contends that the court erred in finding that the child support guidelines provide a basis for finding a material change in circumstances, and that the court erred in finding that a 5 percent increase in his salary constitutes such a change in circumstances. Younger cross-appeals, asserting that the district court erred in denying her request to compel Bryant to pay the health insurance premiums and other related costs of the minor child, and by failing to allocate to her the dependency exemption.

In response to the requirements imposed by the Omnibus Budget Reconciliation Act of 1987 and the Family Support Act of 1988, the North Dakota Legislature expanded the child support enforcement provisions of the North Dakota Century Code. Hearings on S.B. 2245 before the House Human Services and Veterans Affairs Committee were held on March 10, 1989 (testimony of Marcellus Hartze, Director of the Child Support Enforcement Agency for the North Dakota Department of Human Services). Included within these changes were provisions to establish a procedure for the periodic review of support orders. See N.D.C.C. Secs. 14-09-08.4--14-09-08.9. The periodic review of support orders is to be implemented in a two-step process beginning with the development of a plan to review IV-D cases starting October 1, 1990. By October 1, 1993, all cases will be subject to the periodic review. N.D.C.C. Sec. 14-09-08.4, note (1989).

Determination of whether or not the review procedures should apply is governed by a temporary new section of Chapter 14-09, N.D.C.C. ¹

The language of the temporary section clearly provides that the review process is limited to child support orders which are being enforced by the child support agency. See N.D.C.C. Sec. 14-09-08.4, note (1989). This case was originally commenced by a child support agency, but amendment of the judgment under consideration on this appeal was secured through assistance of private counsel.

There may be constitutional concerns associated with applying the review procedures only to cases involving orders which are being enforced by a child support agency until October 1, 1993, when all cases will fall within the provisions for review. Under our current case law, we have required a party to show that there has been a material change in circumstances before a court may modify a child support award. E.g., Gabel v. Gabel, 434 N.W.2d 722 (N.D.1989).

The new provisions may or may not eliminate the requirement that a material change in circumstances be shown before modification of a support award is granted. See N.D.C.C. Sec. 14-09-08.4, note (1989). At a minimum, the question will likely arise as to whether or not, until all cases fall within the periodic review provisions, those cases which are not within the provisions will need to carry the extra burden of showing that a substantial change in circumstances has occurred. This issue is not before us today and new issues cannot be considered for the first time on appeal. E.g., Lynch v. Williston City Com'n, 460 N.W.2d 136 (N.D.1990). Accordingly, as the constitutionality of the newly adopted review procedure was not raised below, we will not attempt to resolve it today.

Our review of the district court's determination concerning child custody, child support, spousal support, and property division is governed by the clearly erroneous standard of review under Rule 52(a), N.D.R.Civ.P. Reede v. Steen, 461 N.W.2d 438, 440 (N.D.1990); Gabel, 434 N.W.2d at 723; Lapp v. Lapp, 293 N.W.2d 121, 124 (N.D.1980). The party asserting the error has the burden of demonstrating that the determinations are erroneous. Gabel, 434 N.W.2d at 723. A determination will be held to be clearly erroneous when the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id. However, we will not reverse the district court merely because we may have viewed the evidence differently. Reede, 461 N.W.2d at 440 (quoting Larson v. Larson, 234 N.W.2d 861, 865 (N.D.1975)).

As we have previously indicated, a party seeking modification of child support payments must first show that the circumstances of the parties have materially changed. Gabel, 434 N.W.2d at 723; Burrell v. Burrell, 359 N.W.2d 381, 183 (N.D.1985). Bryant asserts that the district court erred in finding that there had been a material change in circumstances between the parties. The district court based its determination on a 5 percent increase in Bryant's income over the last five years and the disparity between the amount of Bryant's current support payments and the amount of support suggested by the guidelines. Bryant contends that the district court erred by considering the amount of disparity between his current payments and what the guidelines would require in determining whether or not there has been a material change in circumstances. We agree that the disparity between Bryant's current payments and the guidelines cannot serve as a basis for finding a change in circumstances.

We have previously recognized that "[a] change of circumstances with reference to modification of child support payments is one based primarily on a change in financial circumstances." Schmidt v. Schmidt, 432 N.W.2d 860, 862 (N.D.1988); Skoglund v. Skoglund, 333 N.W.2d 795, 796 (N.D.1983); Corbin v. Corbin, 288 N.W.2d 61 (N.D.1980); Bridgeford v. Bridgeford, 281 N.W.2d 583 (N.D.1979). While other factors may be considered in determining whether or not a change in circumstances has occurred, those other factors often take the form of financially-related evidence, such as the needs of the child and the cause of the change in financial circumstances. See generally, Bloom v. Fyllesvold, 420 N.W.2d 327, 331 (N.D.1988). A change in the child support guidelines does not directly effect either party, nor does it change the financial circumstances of either party.

In 1984, the Minnesota Court of Appeals said:

"The guidelines are inapplicable in a modification case unless the court first finds the substantial change of circumstances required for a modification order."

State on Behalf of Johnson v. Howell, 359 N.W.2d 629, 631 (Minn.App.1984). Accord Hadrava v. Hadrava, 357 N.W.2d 376, 379 (Minn.App.1984). Although the Minnesota Court of Appeals was not directly addressing the issue confronting us here, we do find its reasoning to be helpful in determining whether or not the adoption of the guidelines should be considered to be a change in circumstances. ²

In both North Dakota and Minnesota, there is a presumption against the retroactive application of a statute unless the legislature has clearly indicated such an intent. Reiling v. Bhattacharyya, 276 N.W.2d 237 (N.D.1979); Viereck v. Peoples Sav. and Loan Assoc., 343 N.W.2d 30, 34 (Minn.1984). In Hadrava, the Minnesota Court of Appeals said: "we find no retroactive effect in an application of the guidelines to a modification order, provided the court first finds the substantial change in circumstances required for such an order." (Emphasis added.) Hadrava, 357 N.W.2d at 379. We agree. In this case for the additional reason that the guidelines were not adopted pursuant to the Administrative Agencies Practice Act, Chapter 28-32, N.D.C.C., it was improper to consider them as a material change in circumstances justifying a change in the child support payments. See Illies v. Illies, 462 N.W.2d 878 (N.D.1990).

Although it was error for the district court to consider the effect of the disparity between the...