Cook v. Eggers

1999 ND 97, 593 N.W.2d 781, 1999 N.D. LEXIS 90, 1999 WL 323428
CourtNorth Dakota Supreme Court
DecidedMay 24, 1999
Docket980339
StatusPublished
Cited by15 cases

This text of 1999 ND 97 (Cook v. Eggers) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Eggers, 1999 ND 97, 593 N.W.2d 781, 1999 N.D. LEXIS 90, 1999 WL 323428 (N.D. 1999).

Opinion

MAJRING, Justice.

[¶ 1] Rolf Eggers appealed from an amended divorce judgment requiring him to pay past due spousal support and visitation transportation expenses and ordering Egger’s ex-wife, Cecily Cook, to pay child support. We hold the trial court misapplied the child support guidelines in determining Cook’s net income for computing her child support obligation. We affirm in part, reverse in part, and remand for further proceedings.

[¶2] Eggers and Cook were married in 1991 and have one son, Conrad, who was born in 1992. On March 27, 1996, Eggers and Cook were divorced. The divorce judgment, which was based upon a stipulated agreement, awarded the parties shared physical custody of Conrad until he entered kindergarten in September 1997, at which time Eggers became the custodial parent, and Cook was awarded liberal visitation. Neither party was ordered to pay child support. At the time of the divorce, the parties anticipated Cook would move from the Bismarck-Mandan area, and the judgment provided Eggers would pay one-half of Cook’s transportation costs for visitations with Conrad after she moved.

[¶ 3] In May 1997, Cook moved with her boyfriend, James Fonseca, to Denver, and then, a few months later, to Las Vegas, where the two currently reside. Eggers stopped making spousal support payments after July 1997, and in October 1997 Cook filed a motion requesting an income withholding order for Eggers’ spousal support obligation. Eggers opposed the motion and filed a cross motion requesting the court to establish child support. After an evidentiary hearing, the trial court ordered Eggers to pay past due spousal support and one-half of Cook’s transportation expenses for visitations with Conrad. The court also ordered Cook to pay child support in the amount of $207 per month. Eggers appealed.

[¶ 4] Eggers contends the trial court erred in determining Cook’s income under the child support guidelines for purposes of establishing her child support obligation. In Buchholz v. Buchholz, 1999 ND 36, ¶¶ 11-12, 590 N.W.2d 215, we set forth our standard for reviewing trial court awards of child support:

Child support determinations 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 may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. A court errs as a matter of law when it fails to comply with the requirements of the Guidelines....
As a matter of law, the district court must clearly set forth how it arrived at the amount of income and level of support. Berg v. Ullman ex rel. Ullman, 1998 ND *783 74, ¶ 18, 576 N.W.2d 218. “A proper finding of net income is essential to a determination of the correct amount of child support under the guidelines.” Schleicher v. Schleicher, 551 N.W.2d 766, 769 (N.D.1996). N.D. Admin. Code § 75-02-04.1-02(10) requires “a child support order include a statement of the obligor’s net income and ‘how that net income was determined.’ ” Id.

The definition of gross income under the guidelines is very broad:

“Gross income” means income from any source, in any form, but does not mean benefits received from means tested public assistance programs such as aid to families with dependent children, supplemental security income, and food stamps. Gross income includes salaries, wages, overtime wages, commissions, bonuses, deferred income, dividends, severance pay, pensions, interest, trust income, annuities income, capital gains, social security benefits, workers’ compensation benefits, unemployment insurance benefits, retirement benefits, veterans’ benefits (including gratuitous benefits), gifts and prizes to the extent each exceeds one thousand dollars in value, spousal support payments received, cash value of in-kind income received on a regular basis, children’s benefits, income imputed based upon earning capacity, military subsistence payments, and net income from self-employment.

N.D. Admin. Code § 75-02-04.1-01(5) (emphasis added). This definition provides a nonexclusive listing of sources and forms of income included in determining an obligor’s gross income. Lawrence v. Delkamp, 1998 ND 178, ¶ 15, 584 N.W.2d 515.

[¶ 5] The guidelines also define in-kind income:

“In-kind income” means the receipt of any valuable right, property or property interest, other than money or money’s worth, including forgiveness of debt (other than through bankruptcy), use of property, including living quarters at no charge or less than the customary charge, and the use of consumable property at no charge or less than the customary charge.

N.D. Admin Code § 75-02-04.1-01(6).

[¶ 6] The guidelines require the court to consider net income received by an obligor from all sources in determining the child support obligation. N.D. Admin. Code § 75-02-04.1-02(3). Imputed earnings and other sources of income, including in-kind income, must be considered in determining an obligor’s gross income. See Edwards v. Edwards, 1997 ND 94, ¶¶ 5-7, 563 N.W.2d 394. Specified deductions are then subtracted from gross income to obtain the obligor’s net income, upon which the child support amount is determined. N.D. Admin. Code § 75-02-04.1-01(7).

[¶7] At the time of these proceedings, Cook was not working but was taking some college courses in Las Vegas. Based upon Cook’s past work history, the trial court imputed earnings to her under N.D. Admin. Code § 75-02-04.1-07(3), then added her spousal support, subtracted her allowable deductions, and determined her annual net income was $10,852, resulting in a child support obligation of $207 per month. Eggers asserts Cook has additional sources of income, including in-kind income, which the court should have considered in arriving at Cook’s income for child support purposes,

[¶ 8] Cook testified she receives from Fonseca about $200 to $250 per week as spending money for household expenses. She also testified she lives rent free in a 3,000 square foot home purchased by Fonse-ca for $366,000. Cook testified Fonseca pays for her vehicle insurance, health insurance, college tuition and fees, and has paid for trips taken by Cook to Europe and Mexico. Eggers introduced, without objection by opposing counsel, an exhibit based upon Cook’s deposition testimony, itemizing Cook’s in-kind income. The guidelines unambiguously require the court to consider other income sources, in addition to imputed income based upon earning capacity, including gifts which exceed $1,000 each and the cash value of inland income received on a regular basis. The trial court, however, did not consider Cook’s in-kind income in determining her child support obligation.

*784 [¶ 9] Cook contends the in-kind income she receives from Fonseca should not be considered in determining her child support obligation, because in-kind income received from a spouse is not included.

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Cite This Page — Counsel Stack

Bluebook (online)
1999 ND 97, 593 N.W.2d 781, 1999 N.D. LEXIS 90, 1999 WL 323428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-eggers-nd-1999.