Wilhelm v. Wilhelm

Decision Date13 February 1996
Docket NumberNo. 950207,950207
Citation543 N.W.2d 488
PartiesElaine WILHELM, Plaintiff and Appellee, v. Rod D. WILHELM, Defendant and Appellant. Civil
CourtNorth Dakota Supreme Court

Rauleigh D. Robinson, Mandan, for plaintiff and appellee.

David R. Bliss, Bismarck, for defendant and appellant.

VANDE WALLE, Chief Justice.

Rod D. Wilhelm appealed from an amended divorce judgment reducing his child support obligation. We conclude that the trial court did not err when it refused to consider Rod's rodeo losses when computing Rod's child support obligation, and affirm.

Rod Wilhelm and Elaine Wilhelm were granted a divorce on January 2, 1992. In the original judgment, Elaine received custody of their three minor children, subject to Rod's reasonable visitation. Rod was ordered to pay child support of $900 per month. On January 10, 1995, Rod moved the court to modify the original judgment to reduce his child support obligation to $758 per month in accordance with the child support guidelines.

At the motion hearing, Rod testified that he moved to Aurora, Colorado, in January 1992, following the divorce. In May 1992, he began working as a line equipment operator for Sturgeon Electric, his present employer. Aside from his employment at Sturgeon Electric, Rod testified that he received additional "income" in 1993 and 1994 from rodeo. Rod's income tax returns from 1992 and 1993, his W-2 for 1994, and an income summary for 1992, 1993, and 1994 were offered as evidence. His "income and expenses" from rodeo for 1993 appeared as a business loss of $6,362.00 on his 1993 income tax return. As Rod testified to his "income" from rodeo for 1994, which was a loss of $5,874.00, the trial judge explained that he did not consider Rod's rodeo losses to be relevant to the determination of child support. The trial court described Rod's rodeo participation as something which Rod does voluntarily for entertainment, much like a hobby, that is not income producing. In light of the trial court's ruling and to "preserve the record," Rod introduced an exhibit revealing his rodeo earnings and expenses for 1995, which also showed a net loss.

After the hearing, the trial court issued a memorandum opinion explaining that "although the federal government allows deductions for this enterprise [rodeo], this activity is more in the form of a hobby." The trial court stated that it would not consider Rod's rodeo activities when computing his child support obligation as long as Rod continued to hold his full-time position with the electric company. Amending the judgment based on Rod's monthly net income, the trial court reduced Rod's child support obligation to $792.00 per month. Because Rod had an arrearage of more than $24,000.00, the trial court further ordered Rod to pay $158.00 per month, for a total monthly payment of $950.00 to commence on May 1, 1995. On appeal, Rod argues that the trial court erred when it did not consider his rodeo participation when computing his "gross income" for child support purposes.

A trial court's determination to modify child support is treated as a finding of fact. Rueckert v. Rueckert, 499 N.W.2d 863 (N.D.1993). Findings of fact will not be reversed on appeal unless they are clearly erroneous. N.D.R. Civ. P. 52(a); Neppel v. Neppel, 528 N.W.2d 371 (N.D.1995). A finding is clearly erroneous if, on review of the entire record, we are left with a definite and firm conviction that a mistake has been made, or if it was induced by an erroneous view of the law. Rueckert, supra. Questions of law are fully reviewable on appeal. Gabriel v. Gabriel, 519 N.W.2d 293 (N.D.1994).

Under the child support guidelines, gross income "means income from any source, in any form, ... includ[ing] ... net income from self-employment." N.D.A.C. Sec. 75-02-04.1-01(5). Rod asserts that his rodeo "income" should be considered "net income from self-employment" which is defined as "gross income of any organization or entity which employs the obligor, but which the obligor is to a significant extent able to control, less actual expenditures attributable to the cost of producing income to that organization or entity." N.D.A.C. Sec. 75-02-04.1-01(8). Rod contends that his "net income from self-employment" should be calculated pursuant to section 75-02-04.1-05(1), N.D.A.C.:

"Expenses attributable to the cost of producing income vary from business to business. Deducting expenses from the gross income of the business determines the adjusted gross income, according to internal revenue service terminology. If the latest tax return is not available or does not reasonably reflect the income from the business, a profit and loss statement which will more accurately reflect the current status of the business must be used."

We have recognized the strong public policy, embodied in our statutes and decisions, that parents have an obligation to support their children. See N.D. Cent.Code Sec. 14-09-08 [stating that parents have a mutual duty to support their children]; Guskjolen v. Guskjolen, 499 N.W.2d 126 (N.D.1993) [describing the parental obligation to financially support children]; Rueckert v. Rueckert, 499 N.W.2d 863 (N.D.1993) [holding that a child support stipulation which prohibited or limited modification violated the public policy for support of minor children]; Koch v. Williams, 456 N.W.2d 299, 302 (N.D.1990) [acknowledging the State's strong public policy "of protecting the best interest of children by assuring them of parental support and maintenance"]; Tiokasin v. Haas, 370 N.W.2d 559 (N.D.1985). The child support guidelines, authorized by section 14-09-09.7, NDCC, explain that "considerations of policy require that all parents understand the parental duty to support children to the extent of the parent's ability." N.D.A.C. Sec....

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8 cases
  • Wolf v. Wolf
    • United States
    • North Dakota Supreme Court
    • December 20, 1996
    ...N.D.R.Civ.P. 52(a). Nelson v. Nelson, 547 N.W.2d 741, 743 (N.D.1996); Dalin v. Dalin, 545 N.W.2d 785, 788 (N.D.1996); Wilhelm v. Wilhelm, 543 N.W.2d 488, 489 (N.D.1996). "A finding is clearly erroneous if, on review of the entire record, we are left with a definite and firm conviction that ......
  • Monson v. Monson
    • United States
    • North Dakota Court of Appeals
    • September 15, 1998
    ...proof of additional evidence he wished to introduce to create a record permitting informed appellate review. See, e.g., Wilhelm v. Wilhelm, 543 N.W.2d 488, 490 (N.D.1996); N.D.R.Ev. 103(a)(2). The Explanatory Note following N.D.R.Ev. 103(a)(2) "clearly directs the parties to create a record......
  • Longtine v. Yeado, 970022
    • United States
    • North Dakota Supreme Court
    • August 11, 1997
    ...drafters specifically declined to define net income by reference to federal tax policies for deferred income, see Wilhelm v. Wilhelm, 543 N.W.2d 488, 490 (N.D.1996) (federal tax status is not conclusive for child support purposes), and we decline to rewrite the definition to accomplish that......
  • K.G., In Interest of
    • United States
    • North Dakota Supreme Court
    • June 27, 1996
    ...social service board"); N.D. Cent.Code § 14-09-08 (recognizing parents' mutual duty to support their children); see also Wilhelm v. Wilhelm, 543 N.W.2d 488 (N.D.1996) [identifying the strong public policy embodied in our statutes and decisions that parents financially support their children......
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