Wilson v. Wilson

• Decision Date: 28 October 2014
• Docket Number: No. 20140037.,20140037.
• Citation: 855 N.W.2d 105
• Parties: Brian Keith WILSON, Plaintiff and Appellee v. Cheryl Ann WILSON, Defendant and Appellant and State of North Dakota, Department of Human Services, Statutory Real Party In Interest and Appellee.
• Court: North Dakota Supreme Court

855 N.W.2d 105

Brian Keith WILSON, Plaintiff and Appellee

v. Cheryl Ann WILSON, Defendant and AppellantandState of North Dakota, Department of Human Services, Statutory Real Party In Interest and Appellee.

No. 20140037.

Supreme Court of North Dakota.

Oct. 28, 2014.

Rehearing Denied Nov. 12, 2014.

Patti J. Jensen, East Grand Forks, Minn., for plaintiff and appellee.

Steven J. Simonson (argued) and Adele H. Page (appeared), Fargo, N.D., for defendant and appellant.

Robert A. Freed (on brief), Grand Forks, N.D., for statutory real party.

Opinion

KAPSNER, Justice.

[¶ 1] Cheryl Wilson appeals from a district court judgment granting her a divorce from Brian Wilson, distributing the parties' marital estate, and ordering Brian Wilson pay child support. We conclude the district court did not err in distributing the parties' marital estate. However, we conclude the district court incorrectly calculated Brian Wilson's 2011 and 2012 child support obligation. We affirm in part, reverse in part, and remand.

I

[¶ 2] Cheryl and Brian Wilson were married in 1996, and have two minor children together. The parties separated in 2005. The parties' children lived with Cheryl Wilson during the separation and Brian Wilson voluntarily paid child support.

[¶ 3] Brian Wilson was in the Air Force during the parties' marriage. He was assigned to the United States' Embassy in Djibouti from May 2007 until May 2009, and London from June 2009 until October 2012, when he was discharged from the Air Force. Cheryl Wilson works two part-time jobs and goes to school.

[¶ 4] Brian Wilson filed for divorce in November 2012. After a trial, the district court entered an order awarding Cheryl Wilson primary residential responsibility of the children and distributing the parties' marital estate. The court reserved the issue of child support to allow the State, as a real party in interest, to have an opportunity to submit any argument and to provide the parties with an opportunity to respond.

[¶ 5] After the parties submitted child support calculations and briefs on the issue, the court entered an order setting Brian Wilson's child support obligation. The court found Brian Wilson was providing Cheryl Wilson with child support during the separation. The court found Cheryl Wilson applied for medical assistance in August 2011, the State attempted to serve Brian Wilson at that time but he would not accept service, and the court ordered the child support obligation would begin in August 2011. The court calculated Brian Wilson's income to determine his child support obligation and found he received base pay and large allowances for housing and living expenses while he was stationed overseas in 2011 and 2012. The court found the allowances included $4,184 per month for Overseas Housing Allowance (“OHA”) and $1,328 per month in a Cost of Living Allowance (“COLA”) in 2011. The court found the OHA and COLA payments included $325 for Basic Allowance for Subsistence (“BAS”) and $1,310 for Basic Allowance for Housing (“BAH”) in 2011. The court included Brian Wilson's base pay and BAS and BAH amounts to calculate his income, but found the OHA and COLA payments were not income for child support purposes. The court calculated Brian Wilson's child support obligation and ordered he pay $1,358 per month for August to December 2011, $1,415 per month for 2012, $761 per month for January to October 2013, and $704 per month after October 2013. The court entered a subsequent order giving Brian Wilson credit for the child support he voluntarily paid while the parties were separated.

II

[¶ 6] Cheryl Wilson argues the district court abused its discretion by denying her request for a continuance and dividing the parties' marital estate without being provided full disclosure of Brian Wilson's Wells Fargo Bank account history. She claims there was evidence Brian Wilson evaded disclosing requested information about his bank accounts, he admitted he jointly held a Wells Fargo account with his mother, he did not provide any of the requested discovery for the Wells Fargo account, and there was evidence he deposited funds and made substantial transfers to that account. She contends the court should have granted her request for a continuance or to keep the record open to provide more time and allow the information about the Wells Fargo account to be disclosed before dividing the parties' property because the account may have contained the parties' largest asset.

[¶ 7] The district court has broad discretion over the presentation of evidence and the conduct of a trial. Hartleib v. Simes, 2009 ND 205, ¶ 15, 776 N.W.2d 217. The court also has broad discretion in deciding whether to grant a motion for a continuance, and the court's decision will not be reversed on appeal absent an abuse of discretion. Rickert v. Dakota Sanitation Plus, Inc., 2012 ND 37, ¶ 31, 812 N.W.2d 413. The court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination. Hartleib, at ¶ 15.

[¶ 8] Cheryl Wilson requested discovery from Brian Wilson in December 2012, including requests for information related to existing bank accounts and accounts closed within the past five years, joint or individually held. On March 1, 2013, Cheryl Wilson moved to compel discovery, seeking an order compelling Brian Wilson to provide the requested information about his existing and past bank accounts. In April 2013, Cheryl Wilson requested the court issue a subpoena duces tecum for certain financial records she alleged Brian Wilson failed to produce, and the court granted her request. On May 6, 2013, Cheryl Wilson moved for a continuance, arguing a continuance was necessary to provide her with sufficient time to obtain compliance with her discovery requests.

[¶ 9] On May 31, 2013, the district court granted Cheryl Wilson's motion to compel discovery and ordered Brian Wilson provide information within ten days about any bank accounts he held, either individually or jointly, within the last five years. The court also ordered Cheryl Wilson to prepare and forward to Brian Wilson authorizations for release of his account records and Brian Wilson to expeditiously execute any provided releases. The court ordered Cheryl Wilson “will have the burden and expense of obtaining the account records pursuant to [Brian Wilson's] signed release of information.”

[¶ 10] On June 4, 2013, Brian Wilson filed a notice of compliance with the order to compel, stating Cheryl Wilson did not provide him with an authorization to release information from Wells Fargo and he was asked to obtain the records himself. On June 28, 2013, Cheryl Wilson requested the court amend the order compelling discovery to require Brian Wilson to request certain bank records, but not the Wells Fargo records. On July 1, 2013, Cheryl Wilson filed a request to leave the record open, claiming she had not received the Wells Fargo records. The trial was held on July 2 and 3, 2013, and Cheryl Wilson again requested the court leave the record open. The court denied Cheryl Wilson's request, finding there was testimony about the Wells Fargo account during the trial, further argument would be required if the record remained open and further evidence was submitted, the court would only keep the record open for something crucial, and this was not a crucial issue.

[¶ 11] We conclude the district court did not abuse its discretion by denying Cheryl Wilson's request for a continuance or her request to leave the record open to submit further evidence after the trial. Cheryl Wilson was ordered to provide Brian Wilson with authorizations for release of the bank records and the court ordered that she had the burden of obtaining the records. Brian Wilson filed a notice of compliance with the order to compel stating Cheryl Wilson did not provide an authorization for Wells Fargo and asked him to obtain the records himself because Wells Fargo would not release the information based upon an authorization. Cheryl Wilson did not request the court amend the order to compel to require Brian Wilson obtain the Wells Fargo records. She also did not subpoena the Wells Fargo records. Cheryl Wilson had the burden to obtain the records. The court found there was sufficient evidence about the Wells Fargo account in the record and further argument would be required if the parties submitted evidence after the trial. The court did not act in an arbitrary, unreasonable, or unconscionable manner, and we conclude the court did not abuse its discretion. We affirm the district court's property division.

III

[¶ 12] Cheryl Wilson argues the district court erred in calculating Brian Wilson's child support obligation. Child support decisions involve questions of law subject to the de novo standard of review, findings of fact subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard. Shae v. Shae, 2014 ND 149, ¶ 6, 849 N.W.2d 173. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Id. A court errs as a matter of law when it fails to comply with the child support guidelines in determining a child support obligation. Id. The interpretation and application of a provision of the child support guidelines is a question of law, which is fully reviewable on appeal. Id. at ¶ 13.

A

[¶ 13] Cheryl Wilson argues the district court abused its discretion by setting August 2011 as the effective date to start Brian Wilson's child support obligation. She contends August 2011 was an arbitrary date and there is no rational basis to conclude that date is any more appropriate than any other date after the parties separated in 2005.

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