State of Or. ex rel. Krueger v. Krueger, 9725
| Decision Date | 21 April 1980 |
| Docket Number | No. 9725,9725 |
| Parties | STATE OF OREGON ex rel. Judith M. KRUEGER, Plaintiff/Appellant, v. Benny Thomas KRUEGER, Defendant/Appellee. Civ. |
| Court | North Dakota Supreme Court |
Patricia L. Burke, Bismarck, for plaintiff/appellant.
Benny Thomas Krueger, pro se.
This is an appeal by the plaintiff, State of Oregon ex rel. Judith M. Krueger ("Judith"), from the order of the McLean County District Court dated November 6, 1979, denying Judith's request that the defendant, Benny Thomas Krueger ("Krueger"), be ordered to make monthly child support payments for his adopted child, Alicia R. Krueger. We reverse and remand.
During June of 1978, Benny and Judith Krueger were divorced by decree of the McLean County District Court. Judith and her daughter Alicia, who is Krueger's adopted child, moved to the State of Oregon. Thereafter, the State of Oregon filed an initiating petition under the Uniform Reciprocal Enforcement of Support Act with the Josephine County Circuit Court in Oregon, stating that Alicia was receiving public assistance from the State of Oregon and requesting the McLean County District Court to obtain jurisdiction over Krueger and order him to make support payments for Alicia. In accordance with the provisions of that Act, the Josephine County Circuit Court submitted copies of the initiating petition and that court's Certificate and Order to the McLean County District Court.
On October 18, 1978, a hearing was commenced before the referee of the McLean County District Court wherein counsel for the North Dakota Regional Child Support Enforcement Unit represented Judith, and Krueger appeared pro se. At the conclusion of the hearing the referee determined that although Krueger had a legal duty to support Alicia he did not have the financial ability to do so. The referee recommended that the district court not order Krueger to make support payments, and further recommended that the matter be reviewed within one year. On November 21, 1978, the district court entered its order affirming the findings and recommendations of the referee.
On October 19, 1979, a hearing was commenced before the referee of the McLean County District Court on Judith's motion for a review of the matter as provided in the 1978 order. At this second hearing, counsel for the North Dakota Regional Child Support Enforcement Unit represented Judith and Krueger appeared pro se. At the conclusion of the hearing the referee determined that although Krueger had a legal duty to support Alicia he did not have the financial ability to do so. The referee recommended that the district court not order Krueger to make support payments and further recommended that the matter be reviewed in one year. On November 6, 1979, the district court entered an order affirming the referee's findings of fact and recommendations. Judith has filed an appeal from the order of the district court, asserting that the district court erred in refusing to order Krueger to make support payments for Alicia.
Section 14-12.1-24 of the North Dakota Century Code, of the Uniform Reciprocal Enforcement of Support Act (Revised), provides in relevant part:
The district court's determination on the matter of child support is treated as a finding of fact and will not be set aside by this court on appeal unless it is clearly erroneous under Rule 52(a) of the North Dakota Rules of Civil Procedure. Kostelecky v. Kostelecky, 251 N.W.2d 400 (N.D.1977). A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Kostelecky, supra. Upon reviewing the entire record in this case we are of the opinion that the district court's determination that Krueger does not have the financial ability to make even nominal child support payments is clearly erroneous and must be set aside.
At the hearing, Krueger testified that he was currently employed as a deputy sheriff of McLean County and was receiving "take- home" pay of $800 per month. Krueger testified that he has remarried and that his present wife has a five-year-old child from a previous marriage who is living with them. Krueger also testified that he incurs the following monthly expenses:
MONTHLY
ITEM EXPENSE
---------------------------------- -------------
House payment ..................... $154.00
Car payment ....................... 177.45
Food .............................. 200.00
Garrison Bank loan repayment ...... 78.35
Utilities ......................... 50.00
Phone ............................. 30.00 1
Water and garbage ................. 19.38 2
-------------
Total 709.18
Thus, Krueger's monthly expenses which were introduced into evidence total less than Krueger's $800 monthly income. Although the district court determined that Krueger did not have the financial ability to make support payments, the court made no specific findings as to Krueger's income or expenses.
Krueger also testified that under an Order of Support entered by the Ransom County District Court he had been making support payments of $100 per month for three children of a...
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