Surerus v. Matuska, 950423

Decision Date29 May 1996
Docket NumberNo. 950423,950423
Citation548 N.W.2d 384
PartiesTammy SURERUS, f/k/a Tammy Flaten, Plaintiff and Appellee, v. Mark Thomas MATUSKA, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Daniel E. Bertsch, Assistant State's Attorney, Fargo, for Plaintiff and Appellee.

Mark Thomas Matuska, Fargo, pro se.

NEUMANN, Justice.

Mark Thomas Matuska appeals an order amending his child support obligation. We hold that an imprisoned obligor who has no other income on which to compute a child support obligation may be unemployed or underemployed for the purpose of imputing income under the child support guidelines. We reverse and remand.

Matuska and Tammy Surerus are the parents of a son, Christopher, born April 12, 1979. On April 14, 1982, Matuska was ordered to pay $50.00 per month child support. This obligation has been reviewed many times since, but has not been increased until the most recent review, initiated by motion of the Fargo Regional Child Support Enforcement Unit (Unit). 1 The hearing was held on July 5, 1995, and Matuska's obligation was increased to $250.00 per month.

Since early May 1995, and on a few other occasions dating back to 1979, Matuska has been incarcerated at the North Dakota State Penitentiary. Between prison sentences, Matuska has held various jobs and also has attended college as a full-time student. Beginning in August 1994, he worked for a Fargo business as a structural drafter earning $7.00 per hour. In mid-January 1995, his hourly wage was increased to $8.00 per hour. Matuska left this employment in late April 1995 to begin serving his current prison sentence. His projected release is August 1998.

In increasing Matuska's child support obligation from $50.00 per month to $250.00 per month, the judicial referee found, because of Matuska's incarceration, he was "voluntarily unemployed/underemployed" under section 75-02-04.1-07 of the child support guidelines. The referee determined Matuska had a monthly net income of $1,133.00 based on his most recent employment as a structural drafter earning $8.00 per hour. Applying subsection (3)(c) of section 75-02-04.1-07, the referee multiplied Matuska's monthly net income times 90 percent, arrived at $1,020.00, and then imputed this amount to Matuska as income. The referee determined the presumptively correct amount of child support for an obligor with a monthly net income of $1,020.00 and one child is $250.00 per month. The referee set forth these proposed findings and conclusions in a decision dated August 4, 1995.

Matuska timely requested a review by the district court of the judicial referee's recommended findings and conclusions. The district court determined the referee's findings and conclusions were not clearly erroneous and amended the April 14, 1982, order accordingly. Matuska appeals the district court's amended order.

Matuska's arguments on appeal challenge the jurisdiction of the district court, the authority of the Unit, and the validity and application of section 75-02-04.1-07 of the child support guidelines. We address each in turn.

Matuska first contests the district court's personal jurisdiction of the parties and the court's subject-matter jurisdiction of the action. He asserts no factual or legal basis for the argument; we determine it is without merit.

Matuska also argues the district court lacked jurisdiction to amend his child support obligation. It is well established that a district court has continuing jurisdiction to modify a child support order. E.g., Rueckert v. Rueckert, 499 N.W.2d 863, 867 (N.D.1993); see Nelson v. Nelson, 547 N.W.2d 741 (N.D.1996)(indicating a material change in circumstances is now required only when a modification is sought within less than one year after entry of the child support order). This argument, therefore, also is without merit.

Matuska next argues the Unit lacked authority to seek review and modification of his child support obligation. Matuska claims Surerus did not request a review of his child support obligation and the Unit did not have an assignment of support rights from Surerus. At the time of the Unit's motion to increase Matuska's child support obligation, Surerus was receiving medical assistance benefits. The Unit had the right to seek reimbursement for these benefits from child support payments regardless of a request by Surerus, N.D.C.C. § 14-09-08.4(1)(a), or an assignment of support rights by Surerus. Mehl v. Mehl, 545 N.W.2d 777, 779 (N.D.1996) (indicating the State also is given a statutory assignment to seek reimbursement for medical assistance benefits); Eklund v. Eklund, 538 N.W.2d 182, 184-85 (N.D.1995) (discussing a child support agency's authority to periodically review and seek amendment of child support orders under permanent section 14-09-08.4, N.D.C.C.). Matuska's argument on this issue also is without merit.

Matuska's final arguments are directed at section 75-02-04.1-07 of the child support guidelines, which permits imputing income to an unemployed or underemployed obligor based on earning capacity. First, he contends the Department of Human Services (Department) exceeded its grant of authority under section 14-09-09.7, N.D.C.C., because the definition of "income" under subsection (6) of section 14-09-09.10, N.D.C.C., does not include "imputed income." Therefore, he asserts, the Department impermissibly expanded the definition of "income" when it promulgated the imputed income guideline.

In this court's recently filed Nelson decision, we determined the imputed income guideline was "a reasonable exercise of the rule-making authority" of the Department. 547 N.W.2d at 744. Although the "income" considered under the guidelines encompasses more sources than "income" as defined under section 14-09-09.10, N.D.C.C., 2 this court further held in Nelson that the Department's authority to promulgate the imputed income guideline derived from its statutory directive to "designate other available resources to be considered" in determining a child support obligation under the guidelines. Id. at 745; N.D.C.C. § 14-09-09.7(1)(c). The imputed income guideline is based on an obligor's earning capacity. N.D. Admin. Code § 75-02-04.1-07. Earning capacity is a resource available to an obligor. Nelson, 547 N.W.2d at 744-45. Therefore, Matuska's argument about the guideline definition of "income" differing from the statutory definition fails because the Department was within its scope of authority under section 14-09-09.7 when it adopted the imputed income guideline.

Matuska last argues, if the imputed income guideline is valid, the judicial referee applied it incorrectly. 3 We agree, and remand for a correct application of the guideline in light of this opinion and the recently filed Nelson opinion.

A trial court's modification of child support is a finding of fact that will not be set aside unless clearly erroneous. Rueckert, 499 N.W.2d at 868. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made. Dalin v. Dalin, 545 N.W.2d 785, 788 (N.D.1996). Conclusions of law are fully reviewable. Gajewski v. Taylor, 536 N.W.2d 360, 362 (N.D.1995).

Apparently relying on this court's decision in Koch v. Williams, 456 N.W.2d 299 (N.D.1990), the judicial referee found Matuska's incarceration (and resulting loss of income) was a voluntary act, and further found Matuska was therefore voluntarily unemployed or underemployed. The referee did not need to find Matuska's incarceration voluntary in order to impute income to him under section 75-02-04.1-07 of the guidelines. As we explained in Nelson, to trigger application of the guideline, an obligor need only meet the definition of unemployment or underemployment. 547 N.W.2d at 743.

Under the current child support guideline law as discussed in Nelson, the "voluntariness" of an obligor's change in financial circumstances does not carry the relevancy it once did in modifying a child support obligation, unless the modification is sought within one year after entry of a child support order. Nelson, 547 N.W.2d at 744. Because section 14-09-08.4 now directs periodic review of all child support orders, Eklund, 538 N.W.2d at 184-85, a child support obligation is subject to an increase or decrease regardless of the "voluntariness" or "involuntariness" of an obligor's change in financial circumstances. See Nelson, 547 N.W.2d at 743.

The judicial referee found Matuska was either unemployed or underemployed, and imputed income to him under subsection (3)(c) of the imputed income guideline, based on the evidence of Matuska's earnings as a structural drafter during the four months preceding his present incarceration. 4 At the July 5, 1995, hearing, Matuska indicated he was unemployed in prison, but expected he would be employed at a basic wage of $1.25 per day. He also stated he might get employment with the industry program in the prison at a wage of $.32 to $1.40 per hour. At oral argument, Matuska indicated he was earning $50.00 per month in prison but anticipated earning a higher wage. At the hearing and on appeal, Matuska objected to the referee imputing income based on his pre-incarceration earnings. He argued his child support obligation should be calculated based on his present earnings because he is unable to pay the amended amount and is concerned the resulting accrued debt would hinder his rehabilitation upon his release from prison.

Though arguably the guidelines do not contemplate the situation of an incarcerated obligor, it is nonetheless necessary to apply them and develop a workable solution. Ordinarily a finding of either unemployment or underemployment is necessary to impute income under section 75-02-04.1-07. Nelson, 547 N.W.2d at 744-45. However, as will become apparent, on the facts of this case, a finding of one or the other is not...

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