Henry v. Henry

1998 ND 141, 581 N.W.2d 921, 1998 N.D. LEXIS 152, 1998 WL 394984
CourtNorth Dakota Supreme Court
DecidedJuly 16, 1998
DocketCivil 970370
StatusPublished
Cited by14 cases

This text of 1998 ND 141 (Henry v. Henry) 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
Henry v. Henry, 1998 ND 141, 581 N.W.2d 921, 1998 N.D. LEXIS 152, 1998 WL 394984 (N.D. 1998).

Opinions

MESCHKE, Justice.

[¶ 1] Paul Henry appealed a decree of divorce from Candice Henry to compel the trial court to order genetic paternity testing and to contest the amount of child support. We affirm and remand for consideration of Candice’s request for attorney’s fees on appeal.

[¶ 2] Mitchell Henry was born on February 13, 1995. His parents, Paul and Candice, were later married on April 21, 1995. From a previous marriage, Paul has a daughter living in Montana. When he married Candice, Paul was a Captain in the United States Air Force, stationed at the Grand Forks Air Force Base, and earned nearly $55,000 yearly as a navigator.

[¶ 3] In November 1995, Paul asked the Air Force to end his active duty on June 1, 1996. Paul attempted to withdraw this request on May 3, 1996, while he was on temporary assignment abroad. Paul returned to the Grand Forks Air Force Base on May 12, 1996 and, the next day, was arrested for domestic violence against Candice. As a result, the base commander denied Paul’s request to remain on active duty on May 23, 1996, explaining:

Although Captain Henry has a sound duty record, his conduct off-duty calls into question his suitability for continued military service. He has exhibited poor judgment in handling his personal affairs as evidenced by his arrest for domestic violence on 13 May 96. (Even though the matter will not be pursued by authorities at the request of his spouse).

Candice sued Paul for divorce on May 29, 1996, just two days before Paul separated from the Air Force.

[¶4] Candice moved for an interim order. Although Paul was unemployed when the motion was heard on June 27, 1996, the trial court found he “has a historical earning capacity of at least $3600.00 net per month,” and “financial resources other than a monthly income to assist in the support of his son.” Temporarily, the trial court placed primary physical custody of Mitchell with Candice and, effective June 1, 1996, ordered Paul to pay $586 monthly child support.

[923]*923[¶ 5] When trial began April 17, 1997, Paul withdrew his claim for primary physical custody of Mitchell. At the August 6, 1997 continuation of the trial, Paul’s testimony, for the first time, questioned Mitchell’s paternity. On September 30, 1997, the trial court granted the divorce, placed physical custody of Mitchell with Candice, and ordered Paul to pay her child support of $586 monthly with $236 monthly to be accumulated in arrears while Paul attends law school. Paul appealed.

I. Genetic Testing

[¶ 6] Paul argues he asked the trial court for genetic testing. He asserts the trial court’s decision was erroneous for not ordering genetic testing to determine his paternity of Mitchell.

[¶ 7] Paternity is governed by the Uniform Parentage Act at N.D.C.C. ch. 14-17. “The natural father may be established under this chapter.” N.D.C.C. § 14-17-03. “A man is presumed to be the natural father of a child if: ... [a]fter the child’s birth, that man and the child’s natural mother have married ... and ... [w]ith the man’s consent, that man is named as the child’s father on the child’s birth certificate....” N.D.C.C. § 14-17-04(l)(e). Thus, Paul is presumed to be Mitchell’s natural father. However, under N.D.C.C. § 14-17-04(2), that presumption can be rebutted “in an appropriate action only by clear and convincing evidence.”

[¶ 8] Evidence that will rebut the presumption of paternity includes genetic testing.

The court may, and upon request of a party shall, require the child, mother, or alleged father to submit to genetic tests, including tests of blood or other tissues. The tests must be:
a. Of a type generally acknowledged as reliable by accreditation bodies designated by the secretary of the United States department of health and human services;
b. Performed by a laboratory approved by such an accreditation body; and
e. Performed by an expert qualified as an examiner of genetic data or specimens, appointed by the court.

N.D.C.C. § 14-17-10(1). Paul claims the trial court’s failure to order genetic testing at his request “improperly denied [him] the remedy afforded by the statute to rebut the presumption of his paternity.”

[¶ 9] In his brief, Paul insists his “request for a genetic paternity test was both sufficient and timely. There was eighteen questions and responses directed towards the issue of paternity at the August 6, 1997 hearing.” We have carefully reviewed the entire trial transcript, including the specific testimony Paul references. While there was testimony about the subject of Mitchell’s paternity, we find nothing to support Paul’s position he requested the court to order genetic testing.

[¶ 10] “An application to the court for an order shall be by motion....” N.D.R.Civ.P. 7(b)(1). Paul did not move for genetic testing until his post-decree “Motion for Order for Genetic Paternity Test” on November 17, 1997. In his supporting brief then, Paul said he “stated during the proceedings that he was unsure whether he was the child’s father because of the frequent misrepresentations made to him by [Candice], and also because he believes the minor child does not look like him.” However, nowhere in that brief did Paul explain how he had moved during the trial to compel paternity testing. Because Paul’s motion for genetic testing was made after the trial court had entered the divorce decree, and is still pending in the trial court, we conclude the subject of genetic testing is not here for review on this appeal.

II. Child Support

A.

[¶ 11] The trial court ordered Paul to pay Candice $586 monthly child support with $236 of that to accumulate in arrears while Paul attends law school. The amount of child support was based on Paul’s “ability to earn a monthly net income of $3,600, and recognizing the child support obligation in the state of Montana.”

[¶ 12] Paul contends the trial court erred in determining the amount of child support because

[924]*924(1) there was no determination of the presumptively correct amount of support, (2) there was insufficient evidence to support a finding of underemployment, and (3) the order was in error even if the trial court properly determined underemployment.

Child support determinations are findings of fact subject to review under the “clearly erroneous” standard. N.D.R.Civ.P. 52(a); Hieb v. Hieb, 1997 ND 171, ¶ 6, 568 N.W.2d 598 (citing Wolf v. Wolf, 557 N.W.2d 742, 744 (N.D.1996)). A finding is clearly erroneous if it is based on an erroneous view of the law, if no evidence supports it, or if the entire record leaves the reviewing court with a definite and firm conviction a mistake has been made. Nelson v. Nelson, 547 N.W.2d 741, 743 (N.D.1996). In Hieb at ¶ 7 (citations omitted), we summarized the method for determining the amount of support due:

Child support determinations are governed by N.D.A.C. Chapter 75-02-04.1. A correct finding of an obligor’s net income is essential to determining the proper amount of child support.

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Cite This Page — Counsel Stack

Bluebook (online)
1998 ND 141, 581 N.W.2d 921, 1998 N.D. LEXIS 152, 1998 WL 394984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-henry-nd-1998.