Larson v. Larson

1998 ND 156, 582 N.W.2d 657, 1998 N.D. LEXIS 158, 1998 WL 481512
CourtNorth Dakota Supreme Court
DecidedAugust 18, 1998
DocketCivil 970320
StatusPublished
Cited by11 cases

This text of 1998 ND 156 (Larson v. Larson) 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
Larson v. Larson, 1998 ND 156, 582 N.W.2d 657, 1998 N.D. LEXIS 158, 1998 WL 481512 (N.D. 1998).

Opinion

VANDE WALLE, Chief Justice.

[¶ 1] Colleen Larson appealed from an amended divorce judgment modifying the amount of child support to be paid by Darrell Larson. We conclude the trial court erred in amending its decision without a motion to reopen, based upon affidavits submitted after the parties had rested, the hearing had concluded, and the court had issued its memorandum opinion. We therefore reverse and remand for further proceedings.

*658 I

[¶ 2] When Colleen and Darrell divorced in 1992 their stipulated settlement agreement was incorporated into the judgment. Colleen received physical custody of the parties’ two minor children and Darrell was ordered to pay child support of $600 per month. Darrell also agreed to pay approximately $1,700 per year for each child for a college fund. Darrell was required to annually provide to Colleen copies of his personal tax returns and the returns of Richland County Implement (“Richland”), a corporation solely owned by Darrell.

[¶ 3] In 1996, Colleen moved for modification of child support to comport with the child support guidelines. She asserted the tax returns, as well as evidence of Darrell’s lavish lifestyle, demonstrated he was capable of paying far more than $600 per month for support of the children. Darrell opposed the motion, asserting his salary from Richland was under $16,000 per year and that loan restrictions precluded him from taking additional funds out of the business. Darrell also asserted that, in calculating support under the guidelines, his income from the preceding five years should be averaged to take into account fluctuations in his business income.

[¶ 4] On October 1, 1996, the parties resolved certain discovery disputes and stipulated to a temporary increase in child support to $1,033 per month while the motion was pending. Evidentiary hearings were held on November 19, 1996, and February 5, 1997, and the parties submitted post-hearing briefs.

[¶ 5] On May 2,1997, the trial court issued its memorandum opinion. The court averaged Darrell’s income for the years 1991 through 1995 and determined Darrell’s monthly net income for child support purposes was $11,483. The court set child support at $3,253 per month commencing February 1,1997.

[¶ 6] As directed by the court, Colleen’s counsel prepared proposed findings of fact, conclusions of law, and order for judgment. Darrell’s counsel responded with a letter to the court, arguing that principal payments made on lease/purehase transactions with Ford New Holland should have been subtracted from his income. Darrell also submitted affidavits and attached copies of lease agreements and handwritten calculations purporting to show the amount of these principal payments. Colleen’s counsel replied with a letter objecting to the procedure, pointing out Darrell had the opportunity to present this evidence at the prior hearings and had further failed to disclose these principal payments in discovery. Colleen also objected to the lack of opportunity for cross-examination on this evidence and her inability to adequately rebut Darrell’s belated evidence. Darrell subsequently submitted additional evidence to support his theory. Darrell did not, however, at any time move to reopen for additional evidence.

[¶ 7] The trial court decided to consider the additional evidence and issued an amended memorandum opinion finding Darrell’s average income for 1992 through 1996 1 was $8,418 per month, resulting in support of $2,387 per month for two children under the guidelines. The court issued findings of fact, conclusions of law, and order for judgment, and an amended judgment from which this appeal is taken was entered on September 17,1997.

II

[¶ 8] The trial court’s determination on child support is a finding of fact, and will be affirmed unless it is clearly erroneous. Peterson v. Peterson, 555 N.W.2d 359, 363 (N.D.1996). A finding is clearly erroneous if, on review of the entire record, we are left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law. Wolf v. Wolf, 557 N.W.2d 742, 744 (N.D.1996).

[¶ 9] Colleen asserts the trial court erred in averaging Darrell’s income from a five-year period to calculate his monthly income-for child support. The guidelines indi *659 cate averaging fluctuating income is appropriate, particularly when the obligor is self-employed:

Income must be documented through the use of tax returns, current wage statements, and other information sufficiently to fully apprise the court of all gross income. Where gross income is subject to fluctuation, particularly in instances involving self-employment, 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). We have previously interpreted this guideline provision to authorize the trial court to average fluctuating income from self-employment, thereby providing the most accurate estimation of the obligor’s income. See Houmann v. Houmann, 499 N.W.2d 593, 594-95 n. 1 (N.D.1993); Clutter v. McIntosh, 484 N.W.2d 846, 848-49 (N.D.1992); see also Helbling v. Helbling, 541 N.W.2d 443, 447 (N.D.1995); Mahoney v. Mahoney, 538 N.W.2d 189, 194 (N.D.1995).

[¶ 10] Colleen argues the court should have averaged Darrell’s income only for 1994 and 1995, his two highest-earning years. The court instead determined a five-year average provided a more accurate estimation of Darrell’s income. On this record, considering the nature of the business, we conclude the trial court’s decision to average over five years, instead of two, was not clearly erroneous.

Ill

[¶ 11] Colleen asserts the trial court erred in amending the decision in this case based upon evidence submitted by Darrell after the hearing was concluded and the court had issued its first memorandum opinion. We agree.

[¶ 12] The dispute centers upon Darrell’s assertion the trial court should have subtracted principal payments made on lease/purchase transactions with Ford New Holland. 2 Darrell asserts that, if depreciation on the equipment covered by the leases is added back in to Darrell’s income under the guidelines, the amount of the principal payments should be subtracted out. Darrell relies upon N.D. Admin. Code § 75-02-04.1-05(2):

After adjusted gross income from self-employment is determined, all business expenses allowed for taxation purposes, but which do not require actual expenditures, such as depreciation, must be added to determine net income from self-employment.

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Bluebook (online)
1998 ND 156, 582 N.W.2d 657, 1998 N.D. LEXIS 158, 1998 WL 481512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larson-v-larson-nd-1998.