Steffes v. Steffes, 960188

• Decision Date: 01 April 1997
• Docket Number: No. 960188,960188
• Citation: 1997 ND 49,560 N.W.2d 888
• Parties: Judy Lorraine STEFFES, Plaintiff and Appellant, v. Allen Edward STEFFES, Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 888

560 N.W.2d 888

1997 ND 49

Judy Lorraine STEFFES, Plaintiff and Appellant, v. Allen Edward STEFFES, Defendant and Appellee.

Civil No. 960188.

Supreme Court of North Dakota.

April 1, 1997.

Rehearing Denied April 22, 1997.

Lowell P. Bottrell (argued), of Anderson & Bailly, Fargo, for plaintiff and appellant.

David A. Garaas (argued), of Garaas Law Firm, Fargo, for defendant and appellee.

MARING, Justice.

¶1 Judy Steffes appeals from an amended judgment crediting Allen Steffes for some post-majority child support that had been withheld from his income under a withholding order. We hold Allen was not obligated to pay post-majority child support whenever the contingencies specified in the parties' stipulated divorce decree were not satisfied, and he was entitled to a credit for some of the post-majority support withheld from his income. We hold, however, he was not entitled to a pro rata credit for the children who did not satisfy those contingencies, and we remand for further proceedings consistent with this opinion.

I

¶2 Allen and Judy were divorced in 1983 under a stipulated decree which required Allen to pay Judy $200 per month per child for support for their three children: Katja, ¹ born March 5, 1972; Lindsay, born July 12, 1976; and Jordyn, born May 30, 1979. The judgment required Allen to pay post-majority support for the children under certain conditions:

child support payments ... shall continue ... until a child attains the age of 18 years, at which time payments shall cease with respect to that child. However, if a child is living at home or taking a full schedule of classes at a qualified educational institution said payments shall continue even though said child has attained the age of 18 years until said child ceases to live at home or ceases to take a full schedule of classes at a qualified educational institution, provided that said educational expenses hereby assumed by [Allen] shall cease when said child has attained the age of 22 years. [Allen] shall assume responsibility for all direct post-secondary education and expenses incurred by the children of the parties, until said children have attained the age of 22 years.

¶3 In 1990, Allen and Judy agreed to increase Allen's monthly child support obligation to "$225.00 per child for a total of $675.00." An amended judgment, however, stated Allen's obligation as "$675 per month" and not on a "per child" basis. Allen subsequently began paying child support through income withholding.

¶4 In July 1993, Allen moved to modify his obligation, alleging, in part, Katja was not a full-time student and had reached the age of majority. The district court affirmed a referee's finding Katja was a full-time student, and based on Allen's monthly income of about $1,900, his $675 per month obligation for three children was within the range of support authorized by the child support guidelines.

¶5 In January 1994, Katja was no longer enrolled in college, nor living at home. She turned 22 on March 5, 1994. Lindsay, who turned 18 on July 12, 1994, was hospitalized during her senior year of high school and did not graduate with her class in May 1994. She moved from Judy's home to Colorado in October 1994, and graduated from high school by correspondence in February 1995. Lindsay returned to Judy's home from March 1995 through October 1995, when she moved back to Colorado and attended college part-time. According to Lindsay, she could not afford to attend college on a full-time basis.

¶6 In December 1995, Allen moved to reduce his child support obligation, contending Katja and Lindsay were not living at home and were not attending college on a full-time basis. In January 1996 Allen moved under N.D.R.Civ.P. 60(a) to correct a "clerical mistake" in the judgment to show his child support obligation had been $225 per month per child. He also sought a pro rata reduction in his support obligation.

¶7 A referee ordered the judgment corrected under N.D.R.Civ.P. 60(a) to reflect the parties' agreement for support on a $225 per month per child basis. The referee found Katja was over 18 and had not been living at home, nor taking a full schedule of classes since January 1994. The referee concluded Allen was entitled to a credit of $225 per month from January 1994 for support withheld from his income for Katja. The referee found Lindsay was over 18 and had not been living at home, nor taking a full schedule of classes since October 1994. The referee concluded Allen was entitled to a credit of $225 per month from October 1994 for support withheld from his income for Lindsay. The referee also found Allen's net monthly income was approximately $1,800, and, under the child support guidelines, ordered Allen to pay $378 per month beginning in January 1996 for the remaining child, Jordyn. The referee further concluded Allen was entitled to a credit for medical payments he had made on behalf of the children. The district court affirmed the referee's decision.

II

¶8 District court review of a referee's findings of fact is under the clearly erroneous standard. Throndset v. Hawkenson, 532 N.W.2d 394, 397 (N.D.1995); Benson v. Benson, 495 N.W.2d 72, 78 (N.D.1993). A referee's conclusions of law, however, are fully reviewable. Throndset, 532 N.W.2d at 397. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on review of the entire evidence, the reviewing court is left with a definite and firm conviction a mistake has been made. Helbling v. Helbling, 541 N.W.2d 443, 445 (N.D.1995). A change or modification of child support based upon an erroneous application of the guidelines or statutes is clearly erroneous. Mahoney v. Mahoney, 538 N.W.2d 189, 192 (N.D.1995).

III

A

¶9 Judy contends the district court erred in affirming the referee's decision to give Allen a $225 per month credit for Katja retroactively to January 1994 and for Lindsay retroactively to October 1994. She argues Allen did not ask for that relief.

¶10 Allen's December 1995 motion sought:

an order correcting the clerk's accounting as to the amount of child support arrearages on the following grounds:

a. That the oldest daughter turned 22 in March of 1994, which should have automatically reduced the $675.00 amount of child support to $584.00 per month (based upon a net income of $1,933.00 and 2 children);

b. That the oldest child was not a full-time student and was not living at the house; and

c. That the second oldest child is not a full-time student and is not living with the mother.

... That all amounts paid in excess of child support for two children, after Katja was no longer a student and after one child graduated from high school or obtained the age of 18, should be a credit towards arrearages and attorney fees awarded on prior motions.

¶11 Allen's January 1996 motion under N.D.R.Civ.P. 60(a) alleged the amended judgment mistakenly stated Allen's obligation as $675 per month and asked the court to correct the clerical mistake to reflect the parties' stipulation of $225 per month per child. Allen also asked for a $225 per month per child credit for support withheld from his income when Katja and Lindsay were not living at home, nor attending college on a full-time basis.

¶12 Although the parties' stipulation merged into the judgment, Sullivan v. Quist, 506 N.W.2d 394, 399 (N.D.1993), clerical mistakes in a judgment may be corrected under N.D.R.Civ.P. 60(a). Farm Credit Bank v. Obrigewitch, 462 N.W.2d 113, 115 (N.D.1990); Gruebele v. Gruebele, 338 N.W.2d 805, 811-12 (N.D.1983); Cokins v. Frandsen, 136 N.W.2d 377, 379 (N.D.1965). The referee decided the failure of the amended judgment to state child support on a per month per child basis was a clerical mistake and corrected the mistake to reflect the parties' prior stipulation. The correction of the amended judgment under N.D.R.Civ.P. 60(a), and the credit for payments made on behalf of Katja and Lindsay under that judgment were within the scope of Allen's motions.

B

¶13 Our conclusion about the scope of Allen's motions, however, does not end our inquiry. Judy claims the court erred in retroactively modifying Allen's obligation by giving him a credit for support withheld from his income when Katja and Lindsay were not living at home, nor attending college on a full-time basis.

¶14 A court has continuing jurisdiction to modify child support. E.g., Rueckert v. Rueckert, 499 N.W.2d 863, 867 (N.D.1993). See N.D.C.C. § 14-05-24. Under settled principles, however, a vested child support obligation cannot be retroactively modified. Brakke v. Brakke, 525 N.W.2d 687, 690 (N.D.1994); Rueckert, 499 N.W.2d at 870; Thorlaksen v. Thorlaksen, 453 N.W.2d 770, 775-76 (N.D.1990). See N.D.C.C. § 14-08.1-05(1)(c) (due and unpaid child support not subject to retroactive modification). Depending on the facts of the case, the effective date for a modification of child support generally is the date the motion was filed, or some later date. Gabriel v. Gabriel, 519 N.W.2d 293, 295 (N.D.1994); Shipley v. Shipley, 509 N.W.2d 49, 53 (N.D.1993); Olson v. Garbe, 483 N.W.2d 775, 776 (N.D.1992). We have said parties seeking to change child support should make a prompt motion to modify the obligation. Brakke, 525 N.W.2d at 690. See Throndset, 532 N.W.2d at 397.

¶15 Judy argues any change in Allen's obligation should have been effective from the time of his motion to modify. She argues the credit received by Allen was a retroactive modification of his obligation. Her arguments raise issues about the mechanics for terminating Allen's post-majority support obligation under the contingencies of this judgment and our income withholding statutes.

¶16 Except for rare occasions when there is good cause not to order immediate withholding, our law now requires an obligor's child support to be paid through income withholding. N.D.C.C. § 14-09-09.24; Shipley, 509 N.W.2d at 54-55. See generally ...