Bickel v. Bickel

949 N.W.2d 832

Sabrina BICKEL, Plaintiff and Appellant

v. Matthew BICKEL, Defendant and AppelleeandState of North Dakota, Statutory Real Party in Interest and Appellee

No. 20200026

Supreme Court of North Dakota.

Filed October 21, 2020

Jerilynn B. Adams, Fargo, ND, for plaintiff and appellant.

Tracy J. Lyson, Fargo, ND, for defendant and appellee.

Adair R. Boening (on brief), Special Assistant Attorney General, Fargo, ND, for statutory real party in interest and appellee.

McEvers, Justice.

[¶1] Sabrina Bickel appeals from a second amended judgment modifying Matthew Bickel's child support obligation, order for amended judgment, and order on her motion to compel discovery. She argues the district court erred by miscalculating child support, incorrectly setting the commencement date for the modification of child support, and failing to award her attorney's fees. We reverse the second amended judgment and corresponding order for amended judgment, and remand to the district court for proceedings consistent with this opinion.

I

[¶2] Sabrina and Matthew Bickel were married in 2000 and have two minor children. In April 2018, the parties executed a "Marital Termination Agreement," and the district court entered judgment, which provided, in relevant part, that Matthew Bickel was obligated to pay $226 per month in child support.

[¶3] In May 2019, Sabrina Bickel moved to amend child support, requesting an increase in Matthew Bickel's child support obligation based upon his earning capacity as a physician assistant. Prior to the scheduled hearing on the motion to amend child support, Sabrina Bickel moved to compel discovery, arguing Matthew Bickel had failed to provide thorough and complete answers to interrogatories and responses to requests for production of documents. She also requested attorney's fees as a sanction under N.D.R.Civ.P. 37(a) for failing to provide discovery. The district court ordered Matthew Bickel to turn over his personal tax returns and copies of his pay stubs for the previous two years. The court did not address attorney's fees.

[¶4] After a hearing on Sabrina Bickel's motion to amend child support, the district court entered an order and made the following findings of fact:

Matthew has been active with the Army National Guard for 23 years. That has been his sole source of income since mid-2016....

Matthew's current income is from his fulfillment of his duty through the Colorado National Guard for orders from February 15, 2019 through September 30, 2019. His total income from that endeavor is $46,696.74. Beginning on April 13, 2018, through December 31, 2018, Matthew's income was $95,007.28. This income was derived from Matthew's fulfillment of duty orders from the Colorado National Guard in missile defense. These orders terminated at the end of 2018.

....

Here, Matthew's 2018 income is not a predictor of his income in the future.

....

Sabrina also argues that this Court should presumably impute additional income to Matthew because of his ability to work for more money.

Matthew, however, is underemployed only if his income is less than 167 times the federal hourly minimum wage. See N.D. Admin. Code § 75-02-04.1-07. Matthew's income exceeds that. Here, there is no presumption that Matthew is underemployed.

Sabrina argues she has proven that Matthew is underemployed. The Court disagrees.

Matthew has not worked as a physician assistant since mid-2016. He has looked for similar jobs with no success. He is presently employed with the Army National Guard and has been deployed several times with some deployments providing him better income than others.

Sabrina seeks an upward departure. Matthew seeks a downward departure.

Sabrina has failed to prove by the preponderance of the evidence that deviation from the guidelines is in the best interests of the children.

Matthew seeks a downward departure for his travel expenses to see the children. The evidence shows, however, that he has not exercised all of his parenting time.

The Court concludes that Matthew has failed to prove by the preponderance of the evidence that deviation from the guidelines is in the best interests of the minor children.

The court increased Matthew Bickel's child support obligation, concluding, "Based on Matthew's current income of $46,697 per year, $2,060 monthly, his child support obligation for the two children is $590." The court entered an amended judgment in accordance with its order.

[¶5] In October 2019, Sabrina Bickel moved to amend the findings and judgment, arguing essentially the same points she now makes on appeal. After a hearing, the district court amended its order. The court made the same findings of fact that were in its prior order. However, the court increased Matthew Bickel's child support obligation, concluding, "Based on Matthew's current income of $46,697 per year, $2,060 monthly, his child support obligation for the two children is $875." Although the court did not explain its reasoning in its amended order, the discussion at the hearing indicates that the change in child support to $875 was a correction. The court appears to have given Matthew Bickel credit for a monthly $1,000 deduction for travel expenses in the prior order, although it found such a deduction was unwarranted. The court entered the second amended judgment accordingly.

II

[¶6] Sabrina Bickel argues the district court erred in calculating Matthew Bickel's child support obligation. Child support determinations involve questions of law, which are fully reviewable, findings of fact subject to the clearly erroneous standard, and in some areas, matters of discretion subject to the abuse of discretion standard. Minyard v. Lindseth , 2019 ND 180, ¶ 6, 930 N.W.2d 626. "A court errs as a matter of law if it does not comply with the requirements of the child support guidelines." Wolt v. Wolt , 2019 ND 155, ¶ 5, 930 N.W.2d 589. As a matter of law, the court must clearly set forth how it arrived at the amount of income and level of support. Minar v. Minar , 2001 ND 74, ¶ 10, 625 N.W.2d 518. "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." Id.

A

[¶7] Sabrina Bickel argues the district court erred in calculating Matthew Bickel's child support obligation by using a partial year's income. The State of North Dakota, which is the statutory real party in interest, agrees. Matthew Bickel claims, "The district court made clear it determined [his] income based on his 2019 income and did not err in declining to ‘extrapolate’ additional income from a different contract and different employment to determine [his] child support obligation. There is no evidence in this record that [he] earned additional income in the remaining 4.5 months of the year."

[¶8] The district court found: "Matthew's current income is from his fulfillment of his duty through the Colorado National Guard for orders from February 15, 2019 through September 30, 2019. His total income from that endeavor is $46,696.74." It concluded, "Based on Matthew's current income of $46,697 per year, $2,060 monthly, his child support obligation for the two children is $875."

[¶9] "Each child support order must include a statement of the net income of the obligor used to determine the child support obligation, and how that net income was determined. " N.D. Admin. Code § 75-02-04.1-02(9) (emphasis added). "The annual total of all income considered in determining a child support obligation must be determined and then divided by twelve in order to determine the obligor's monthly net income." N.D. Admin. Code § 75-02-04.1-02(6).

Income must be sufficiently documented through the use of tax returns, current wage statements, and other information to fully apprise the court of all gross income. Where gross income is subject to fluctuation, regardless of whether the obligor is employed or self-employed, information reflecting and covering a period of time sufficient to reveal the likely extent of fluctuations must be provided.

N.D. Admin. Code § 75-02-04.1-02(7). "Because a proper finding of net income is essential to determine the correct amount of child support under the child support guidelines, we have said that, as a matter of law, a trial court must clearly set forth how it arrived at the amount of income and the level of support." Berge v. Berge , 2006 ND 46, ¶ 8, 710 N.W.2d 417. "When a trial court does not clearly state how it calculated the amount of child support, this Court will reverse and remand for an explanation even if the record contains adequate evidence for the trial court to make a precise finding." Id.

[¶10] In Berge , 2006 ND 46, ¶ 1, 710 N.W.2d 417, we reversed and remanded the trial court's child support order for recalculation of the obligor's net income "accompanied by an explanation of how the court determined the amount." We concluded, in part, "It is improper to calculate an obligor's annual employment income based on a mid-year pay stub when, as here, the obligor's employment income is reflected on the prior year's tax return." Id. at ¶ 19. In analyzing the issue, we noted:

In Korynta v. Korynta , 2006 ND 17, ¶¶ 17-18, 708 N.W.2d 895, we concluded that the trial court misapplied the law in calculating the obligor's child support obligation by extrapolating income based on a recent pay stub for only a six-month period, where the record contained the obligor's tax returns for the prior four years and the trial court provided no reasons for its extrapolation of income. We held, "unless the trial court makes a determination that evidence of an obligor's recent past circumstances is not a reliable indicator of his future circumstances, the trial court must not extrapolate an obligor's income under N.D. Admin. Code § 75-02-04.1-02(8)." Korynta , at ¶ 17. See also Helbling [v. Helbling] , 541 N.W.2d [443] at 448 [ (N.D.1995) ] (trial court

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