Edison v. Edison

1

2024 ND 196

Signe Ann Edison, Plaintiff and Appellee v. Jeffrey Bryce Edison, Defendant and Appellant

No. 20240119

Supreme Court of North Dakota

October 24, 2024

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Tristan J. Van de Streek, Judge.

AFFIRMED.

Michael L. Gjesdahl, Fargo, N.D., for plaintiff and appellee.

Benjamin B. Freedman, Fargo, N.D., for defendant and appellant.

Opinion of the Court by Tufte, Justice, in which Justice Crothers, Justice Bahr, and District Judge Daniel S. El-Dweek joined. Justice McEvers filed an opinion concurring specially.

OPNNION

Tufte Justice.

[¶1] Jeffrey Edison appeals from an amended divorce judgment entered following remand from this Court. On appeal, he argues the district court's award of primary residential responsibility to Signe Edison was clearly erroneous because the court was biased. Jeffrey Edison also argues the district court erred in calculating his income and finding him to be underemployed for purposes of child support. We affirm the judgment.

I

[¶2] Jeffrey Edison previously appealed from a divorce judgment and an amended judgment "awarding primary residential responsibility for two children to Signe Edison, arguing error in the form of gender bias and in the court's finding that Jeffrey Edison was underemployed for purposes of child support." Edison v. Edison ("Edison I"), 2023 ND 141, ¶ 1, 994 N.W.2d 151. We concluded the district court's findings regarding E.E.'s best interests were clearly erroneous because they misapplied N.D.C.C. § 14-09-29(1), explaining the "court's reasoning for awarding Signe Edison primary residential responsibility over E.E. depended significantly on Signe's breastfeeding E.E." Id. at ¶ 19. We held the "district court's findings in support of its award of primary residential responsibility to Signe Edison were heavily influenced by improper sex-based generalizations" and remanded "for the district court to make findings under a correct application of the law." Id. at ¶ 23.

[¶3] In Edison I, Jeffrey Edison also argued "the district court erred in finding that he was underemployed for purposes of child support and for imputing income to him," and this Court agreed. 2023 ND 141, ¶ 36. We held "[t]he court's finding that Jeffrey Edison was underemployed is clearly erroneous because it lacked evidence to support the 'statewide average earnings for persons with similar work history and occupational qualifications.'" Id. at ¶ 41. This Court further concluded, "the court erred because it failed to calculate Jeffrey Edison's gross income and made a determination solely on the basis of his adjusted gross income from his tax returns." Id. at ¶ 44.

[¶4] After remand, the district court held a status conference. The parties stipulated that E.E. was no longer breastfeeding and that the district court could receive and rely on relevant pages of the U.S. Bureau of Labor Statistics wage employment survey as evidence. The court also heard argument on the issues on remand. Thereafter, the district court entered orders for amended judgment in two parts. The first part addressed the best interest factors under N.D.C.C. § 14-09-06.2(1)(a)-(m) and awarded primary residential responsibility to Signe Edison. The second order addressed the issue of child support calculations and found Jeffrey Edison was underemployed. Both orders were incorporated into the second amended judgment. Jeffrey Edison appeals from the second amended judgment.

II

[¶5] Jeffrey Edison argues he was denied due process on remand because the district court failed to follow instruction on remand to reconsider the award of residential responsibility without improper sex-based generalizations. He argues the district court maintained its bias and prejudged the matter. He asks this Court to award equal residential responsibility or to reassign the case to a different judge.

[¶6] "At a minimum, [due process] requires the proceedings be overseen by an impartial fact-finder." Koon v. State, 2023 ND 247, ¶ 15, 1 N.W.3d 593 (citation omitted). "A fact-finder is not impartial if the fact-finder prejudges the case, if the fact-finder harbors an actual bias towards a participant or if a high probability exists the fact-finder harbors bias towards a participant." Id.

[¶7] Jeffrey Edison argues the district court's bias is shown through the court's commentary on how to proceed after remand and its categorization of genderbias as the "breastfeeding issue." At the status conference, the district court asked if it needed to receive further evidence or if it may review the record and simply remove any reference to breastfeeding in its findings. After review of the record, we conclude the district court's comments do not rise to the level of judicial bias or impartiality. See Schadler v. Job Serv. N.D., 361 N.W.2d 254, 258 (N.D. 1985) (holding inartful comments are an insufficient basis to establish bias).

[¶8] Jeffrey Edison next argues the district court's findings are not supported by the record. He argues the district court must be biased because the only difference between the court's final order and the interim order, which awarded equal residential responsibility, was the court's findings on breastfeeding.

[¶9] Adverse rulings alone are not evidence of judicial bias or partiality. Wisnewski v. Wisnewski, 2020 ND 148, ¶ 65, 945 N.W.2d 331. "In a bench trial, it is presumed the district court only considered competent evidence because a judge, when deliberating the ultimate decision, is capable of distinguishing between admissible and inadmissible evidence." Koon, 2023 ND 247, ¶ 17.

[¶10] In Edison I, we explained the district court's analysis of the best interest factors, namely factors (a), (c), and (m), relied significantly on breastfeeding. 2023 ND 141, ¶¶ 16-19. The district court eliminated those findings in its amended order. The district court followed our directive to make findings under the correct application of law. The district court's award is not gender-biased.

[¶11] Jeffrey Edison has not shown bias. Nor has Jeffrey Edison shown the district court prejudged the issue. We affirm the district court's award of primary residential responsibility to Signe Edison.

III

[¶12] Jeffrey Edison argues the district court erred in calculating his income and finding him underemployed. "Determination of whether an individual is underemployed is within the discretion of the trial court." Schrodt v Schrodt, 2022 ND 64, ¶ 22, 971 N.W.2d 861. "If the district court fails to comply with the child support guidelines in determining an obligor's child support obligation, the court errs as a matter of law." Edison I, 2023 ND 141, ¶ 37 (citations omitted).

[¶13] Jeffrey Edison argues the district court improperly determined his income from past years, which were not reliable indicators of his current and future earnings. He also argues the court failed to adequately compare his earnings to the state's statewide average earnings for persons with similar work history and occupational qualifications and improperly subtracted his self-employment losses from his gross income.

A

[¶14] Jeffrey Edison is self-employed. Our case law regarding self-employment explains:

Determination of a self-employed individual's income for the purpose of calculating a child support obligation is governed, at least initially, by N.D. Admin. Code § 75-02-04.1-05. "Net income from self-employment means total income, for internal revenue service purposes, of the obligor." N.D. Admin. Code § 75-02-04.105(1). The guidelines recognize that "[s]elf-employment activities may experience significant changes in production and income over time." N.D. Admin. Code § 75-02-04.1-05(4). "To the extent that information is reasonably available the average of the most recent five years of each self-employment activity, if undertaken on a substantially similar scale, must be used to determine selfemployment income." Id. "If the tax returns are not available or do not reasonably reflect the income from self-employment, profit and loss statements which more accurately reflect the current status must be used." N.D. Admin. Code § 75-02-04.1-05(3). A district court cannot arbitrarily ignore the guidelines simply because it feels the obligor's tax returns do not reasonably reflect the obligor's income without ordering the parties to present more information and making specific findings of fact.

Thompson v. Johnson, 2019 ND 111, ¶ 9, 926 N.W.2d 120.

[¶15] Jeffrey Edison argues the district court erred by using his 2021 tax return because it was not a reliable indication of his future circumstances. The district court explained, "Jeffrey's tax returns are adequate to reflect his income as the Court found his testimony provided an incomplete representation of his income for 2022, since his self-employment income and losses were not yet known and his predictions are based off a short period of time." The court further found, "Jeffrey did not argue his tax returns were inaccurate and they were further corroborated by his father, a Certified Public Accountant, who prepared them."

[¶16] Jeffrey Edison argues his testimony is a more reliable indicator of future circumstances. Regarding Jeffrey Edison's testimony, the district court found:

Jeffrey testified at trial that he can withdraw approximately $2,500.00 per month from Edison Squared Investments LLC, and that he has an income from JBE Construction, but that is not as predictable. Jeffrey's 2021 tax return shows a gross annual income of negative $13,659.00. Docket # 461. Page 12 of his tax return breaks down his income. Id. Specifically, JBE Construction had a business income of $12,577.00 and Edison Squared Investments LLC, had a

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