Quamme v. Bellino

540 N.W.2d 142, 1995 N.D. LEXIS 210, 1995 WL 703497
CourtNorth Dakota Supreme Court
DecidedNovember 30, 1995
DocketCiv. 950154
StatusPublished
Cited by28 cases

This text of 540 N.W.2d 142 (Quamme v. Bellino) 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
Quamme v. Bellino, 540 N.W.2d 142, 1995 N.D. LEXIS 210, 1995 WL 703497 (N.D. 1995).

Opinions

SANDSTROM, Justice.

Joann Bellino appeals the modified judgment adjudicating reserved issues in her divorce from Brian Quamme. We affirm in part, reverse in part, and remand, holding the adjusted income of Quamme’s corporation, and not the salary paid to Quamme, should be used to calculate his child support obligation.

I

Joann Bellino (Bellino) and Brian Quamme (Quamme) were married on August 28, 1976. In September 1978, the parties moved to Wahpeton and opened their own dental office. Quamme was the dentist, and Bellino worked as the bookkeeper and dental assistant. In September 1982, the parties’ first son, Adam, was born. Bellino quit working at the dental office to become a full-time parent, but she continued doing the bookkeeping for the dental practice at home. A second child, Breanna, was born in September 1984. Bellino remained at home to care for the children until the divorce.

The parties separated on September 25, 1990. At that time, the parties owned two houses in the Wahpeton area. Bellino lived in one house, and Quamme lived in the other.

The divorce was tried August 29, 1991. The court awarded the parties joint legal custody of the two children. Bellino was awarded sole physical custody during the school year. Quamme was awarded sole physical custody during the summer. The court ordered Quamme to assume the mortgage payments for both houses. Recognizing the significant expenses incurred by Quamme in maintaining both houses, the court temporarily awarded Bellino $1,200 per month child support, an amount less than the presumptively correct amount under the guidelines. Bellino was also to receive the rental payments from the larger house. Once the larger house was sold, the court intended to make a more permanent order concerning child support. Intending to revisit the issue of spousal support following the sale of the larger house, the court provided temporary spousal support to Bellino by requiring Quamme to pay for her medical insurance and “uncovered” optometric, dental, and other medical expenses. The court also ordered Quamme to pay Bellino’s attorney’s fees at the rate of $100 per month. The court added, “This payment is a temporary payment order and is subject to readjustment upon sale of the [larger] house.”

Quamme moved to amend the judgment on November 15, 1991. Both parties claimed the other had wrongfully acquired property belonging to the other under the divorce decree. The court ordered Quamme to pay Bellino $1,000 in attorney’s fees, in part for Quamme’s self-help acquisition of certain property.

Bellino unsuccessfully moved the district court to amend its original judgment on July 16, 1993. Bellino again moved the court to amend the judgment in October, 1994. Specifically, she contended the judgment’s provisions regarding spousal support, child support, and attorney’s fees needed to be amended. In the memorandum opinion authorizing amendment of judgment, the court [145]*145noted several factors contributed to the necessity for amendment. First, Quamme was able to reduce his net income through incorporation, paying himself $46,000, instead of being taxed as a sole proprietor on $71,000. The court also noted Quamme gained additional write-offs through incorporation, “including paying salary to his new wife which would result in income to the family but not necessarily be chargeable to him for child support purposes.” Second, Quamme purchased the larger house from Bellino and sold the smaller house, reducing his payment obligations. The substantial mortgage payments from two houses had made it impossible, the court said, to award the child support suggested by the guidelines in the initial divorce decree as there just “wasn’t enough money to go around.” And third, Bellino has lost the rental value of the larger house, since Quamme purchased it.

In its memorandum opinion, the district court stated, “The Court very clearly indicated, and as counsel also recognized, the sale of one of these houses was an absolute necessity in order to properly calculate meaningful child support and spousal support. That is the reason the Court reserved those issues in its initial opinion.” Overall, the court found Bellino had lost approximately $500 per month in income, while Quamme had reduced his obligations by about $1,000 per month.

The district court increased monthly child support from $1,200 to $1,372. Bellino was awarded $500 per month in spousal support for four years, and Quamme was released from the obligation to pay her medical insurance and expenses. Finally, the court awarded Bellino additional attorney’s fees of $1,500 for the cost of bringing this motion.

Bellino appeals the court’s judgment, claiming the spousal support, child support, and attorney’s fees awards are all clearly erroneous.

The district court had jurisdiction under N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. Art. VI, § 6 and N.D.C.C. § 28-27-01.

II

Bellino claims the court’s child support award in the district court judgment is clearly erroneous because it was not calculated using appropriate figures concerning Quamme’s income, especially considering the recent incorporation of the dental business.

A

The district court specifically reserved the issue of child support for later decree. See Hallock v. Mickels, 507 N.W.2d 541, 544 (N.D.1993). In addition, the original child support award was entered more than one year before the filing of this motion. See N.D.C.C. § 14-09-08.4(3). On appeal, neither party contends the district court inappropriately revisited this issue.

B

The district court increased Quamme’s child support obligations to $1,372 per month. Bellino argues the district court incorrectly calculated Quamme’s income for child support purposes. A district court’s findings on a motion to modify child support are subject to review under N.D.R.Civ.P. 52(a), and will not be disturbed on appeal unless they are clearly erroneous. Mahoney v. Mahoney, 516 N.W.2d 656, 661 (N.D.App.1994) (citing Hallock v. Mickels, 507 N.W.2d 541, 544 (N.D.1993)). “A finding of fact is clearly erroneous if, although there is some evidence to support it, a reviewing court, on the entire record, is left with a definite and firm conviction that a mistake has been made, or if it was induced by an erroneous view of the law.” Mahoney.

In determining Quamme’s income for child support purposes, the court considered the average monthly income of $5,241 per month for the three years preceding incorporation, and the average net income of $4,224 per month for the two years following incorporation. The court found the average net monthly income over the entire period to be approximately $4,800.

The district court specifically found Quamme had been able to reduce his net monthly income through incorporation. Yet, there is no indication the district court calculated Quamme’s income after incorporation [146]*146based on the business’ actual gross income, rather than the salary Quamme chose to pay himself. When the obligor is self-employed, the district court should “coherently assemble facts and figures from the evidence to determine [the obligor’s] net income.” Mahoney v. Mahoney,

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Bluebook (online)
540 N.W.2d 142, 1995 N.D. LEXIS 210, 1995 WL 703497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quamme-v-bellino-nd-1995.