Thornton v. Klose, 20090320.

• Decision Date: 13 July 2010
• Docket Number: No. 20090320.,20090320.
• Citation: 2010 ND 141,785 N.W.2d 891
• Parties: Susan K. THORNTON, fka Susan K. Klose, Plaintiff and Appellee v. Richard S. KLOSE, Defendant and Appellant.
• Court: North Dakota Supreme Court

785 N.W.2d 891

2010 ND 141

Susan K. THORNTON, fka Susan K. Klose, Plaintiff and Appellee

v.Richard S. KLOSE, Defendant and Appellant.

No. 20090320.

Supreme Court of North Dakota.

July 13, 2010.

James A. Reisnour, Jamestown, N.D., for plaintiff and appellee; submitted on brief.

Cynthia Gay Schaar, Special Assistant Attorney General, Child Support Enforcement Unit, Jamestown, N.D., submitted on brief.

Joseph F. Larson II, Jamestown, N.D., for defendant and appellant; submitted on brief.

VANDE WALLE, Chief Justice.

[¶ 1] Richard Klose appealed from a temporary child support order amending the terms of a prior divorce judgment. We reverse the order and remand for recalculation of child support, concluding that the district court erred in applying the offset provision of N.D. Admin. Code § 75-02-04.1-08.2 when determining child support in this case.

I

[¶ 2] Richard Klose and Susan Thornton were divorced in 2005. The parties entered into a stipulation resolving child custody and support issues involving their minor child. Their agreement was incorporated into the divorce judgment.

[¶ 3] The judgment provided for joint legal custody and shared physical custody, and set out a complex schedule for sharing custody. During the school year, the judgment required:

The parties shall share the physical custody of the minor child on a two week rotation during the school year as follows:

a. During week one, [Klose] has physical custody of the minor child during the week except [Thornton] has physical custody of the minor child from 8:00 a.m. Thursday morning until 6:00 p.m. Sunday evening.

b. During week two, [Klose] has physical custody of the minor child during the week except [Thornton] has physical custody of the minor child from 8:00 a.m. Thursday morning until 10:00 a.m. Saturday morning.

c. After completion of the two week rotation, the rotation starts over again.

The judgment provided for a variation of the rotation schedule during the summer months, giving Thornton extra time during the first week of June, July, and August. The ultimate effect of this variation is that Klose and Thornton were each awarded custody for 42 of the 84 days in the twelve-week summer period. The judgment also made provisions for certain "special days" and holidays, resulting in an essentially equal split in custody for those days. The judgment further provided that "[t]he custody schedule ... is subject to modification upon mutual agreement between the parents." In addition, the section of the judgment calculating child support provides:

For purposes of calculating child support, the parties are each considered to have equal physical custody of the minor child.

[¶ 4] The judgment determined that Thornton had net monthly income of$1,888, resulting in a child support obligation of $394, and Klose had net monthly income of $1,489, resulting in a child support obligation of $330. Applying the offset provision of N.D. Admin. Code § 75-02-04.1-08.2, Thornton was ordered to pay $64 in monthly child support.

[¶ 5] In 2009, the Regional Child Support Enforcement Unit brought a motion to amend the judgment to modify child support. Klose and Thornton responded, and Klose filed a motion for summary judgment arguing that the award of physical custody under the judgment was not equal and therefore the offset provision in N.D. Admin. Code § 75-02-04.1-08.2 did not apply. Following a hearing, the district court determined the offset provision applied and denied Klose's motion for summary judgment. Based upon the parties' updated financial information, the court determined that Thornton had a child support obligation of $394 and Klose had a child support obligation of $362. Applying the offset provision, the court ordered Thornton to pay $32 per month child support. The court's written order is captioned "Temporary Child Support Order," and provides:

A Temporary Order of support shall be entered in the above entitled matter for a period of one year. If the parties do not request a review of support at that time, a second amended judgment shall be entered containing the terms and conditions set forth in this Order.

[¶ 6] Klose has appealed, arguing the district court erred in applying the offset provision.

II

[¶ 7] Before we consider the merits of an appeal, we must determine whether we have jurisdiction. Brummund v. Brummund, 2008 ND 224, ¶ 4, 758 N.W.2d 735; Buchholz v. Barnes County Water Bd., 2008 ND 158, ¶ 5, 755 N.W.2d 472. The right to appeal is a jurisdictional matter which this Court will consider sua sponte. Brummund, at ¶ 4; Buchholz, at ¶ 5. The right to appeal is governed solely by statute and, even if the parties do not raise the issue of appealability, we must take notice of the lack of jurisdiction and dismiss an appeal if there is no statutory basis for the appeal. Brummund, at ¶ 4; Buchholz, at ¶ 5; City of Grand Forks v. Riemers, 2008 ND 153, ¶ 5, 755 N.W.2d 99.

[¶ 8] Klose has appealed from a temporary child support order setting the parties' child support obligations for a period of one year. Section 14-05-25, N.D.C.C., provides that "all orders and decrees touching the alimony and maintenance of either party to a marriage and for the custody, education, and support of the children are subject to revision on appeal in all particulars." That statutory provision "has been construed as authorizing an appeal from a temporary support order." Mahoney v. Mahoney, 516 N.W.2d 656, 660 (N.D.Ct.App.1994); see Keller v. Keller, 158 N.W.2d 694, 696-97 (N.D.1968); Albrecht v. Albrecht, 99 N.W.2d 229, 236-37 (N.D.1959) (on petition for rehearing). In addition, N.D.C.C. § 28-27-02(5) authorizes an appeal from "[a]n order which involves the merits of an action or some part thereof." A temporary child support order effectively amending the prior divorce judgment and setting the parties' child support obligations for a period of one year is an order "for the ... support of the children" and "involves the merits of an action." We therefore conclude the temporary child support order was appealable and we have jurisdiction.

III

[¶ 9] The sole issue raised by Klose on appeal is whether the district court erred in applying the offset provision of N.D. Admin. Code § 75-02-04.1-08.2 when calculating child support in this case.

[¶ 10] Child support determinations may 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, in some limited areas, matters of discretion subject to the abuse of discretion standard of review. E.g., Heinle v. Heinle, 2010 ND 5, ¶ 36, 777 N.W.2d 590; State ex rel. K.B. v. Bauer, 2009 ND 45, ¶ 8, 763 N.W.2d 462. The district court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor's child support obligation. Heinle, at ¶ 36; Bauer, at ¶ 8; Serr v. Serr, 2008 ND 56, ¶ 18, 746 N.W.2d 416 [" Serr I "]. The interpretation and proper application of the provisions of the child support guidelines are questions of law, fully reviewable on appeal, and the failure to properly apply the guidelines to the facts is an error of law. Heinle, at ¶ 36; Bauer, at ¶ 8. In addition, the interpretation of the divorce judgment is a question of law, fully reviewable on appeal. Serr I, at ¶ 18; Boumont v. Boumont, 2005 ND 20, ¶ 5, 691 N.W.2d 278.

[¶ 11] The child support guidelines allow an offset of the parties' respective child support obligations in cases where the parents have been awarded "equal physical custody" of the child:

A child support obligation must be determined as described in this section in all cases in which a court orders each parent to have equal physical custody of their child or children. Equal physical custody means each parent has physical custody of the child, or if there are multiple children, all of the children, exactly fifty percent of the time. A child support obligation for each parent must be calculated under this chapter assuming the other parent is the custodial parent of the child or children subject to the equal physical custody order. The lesser obligation is then subtracted from the greater. The difference is the child support amount owed by the parent with the greater obligation.

N.D. Admin. Code § 75-02-04.1-08.2 (emphasis added).

[¶ 12] This Court has clarified the application of this offset provision in a series of cases. In Boumont, we addressed whether the language of the judgment or the parties' actual practice determined if there was an exactly equal fifty-fifty custody split triggering application of N.D. Admin. Code § 75-02-04.1-08.2. The custody provision in the parties' divorce judgment stated:

CUSTODY: That each of the parties are granted joint legal and joint physical custody of the children. The children shall be in the physical custody of each parent one-half of the time. It is not possible to give [a] specific schedule of time the children are with each parent because of both parents' work schedules which are subject to wide fluctuations.

Boumont, 2005 ND 20, ¶ 5, 691 N.W.2d 278. The mother subsequently moved to amend the divorce judgment to increase the father's child support obligation, arguing that in actual practice she had the children in her physical custody more than fifty percent of the time and therefore the offset provision should not apply. She argued that the district court should engage in a factual analysis of the parties' actualexercise of custody to determine whether the offset provision applied. The father contended that the language in the judgment setting the exercise of custody controlled over the parties' actual practice and therefore the offset provision should apply.

[¶ 13] We concluded the guidelines require that the court look to the language in the divorce judgment setting out the custodial arrangement, not the parties' actual practice, to determine whether the court has ordered "equal physical custody" triggering application of the...