Sweeney v. Hoff

478 N.W.2d 9, 1991 N.D. LEXIS 210, 1991 WL 244349
CourtNorth Dakota Supreme Court
DecidedNovember 20, 1991
DocketCiv. 910099
StatusPublished
Cited by12 cases

This text of 478 N.W.2d 9 (Sweeney v. Hoff) 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
Sweeney v. Hoff, 478 N.W.2d 9, 1991 N.D. LEXIS 210, 1991 WL 244349 (N.D. 1991).

Opinions

ERICKSTAD, Chief Justice.

Dennis Duane Hoff appeals from a third amended judgment entered in the District Court for Grand Forks County, increasing Hoff’s child support obligation from $125 per month to $372 per month, and ordering Hoff to pay $1,070 for his share of incurred unpaid medical expenses. We affirm in part, reverse in part, and remand.

[10]*10On January 28, 1981, the parties to this action were divorced. In the initial judgment of divorce, Hoff was required to pay $125 per month per child. The judgment was subsequently modified on two occasions, but Hoff’s child support obligation remained at $125 per month per child. At the time of the divorce, the parties had two minor children. The older of the parties’ children reached the age of majority on April 24, 1990, which reduced his total obligation from $250 to $125 per month.

On August 2, 1990, Bonnie Sweeney brought a motion to amend the second amended judgment to increase Hoff’s child support obligation, and to change visitation. In her brief in support of the motion, Sweeney also asked the Court to order Hoff to pay for one-half of certain medical expenses already incurred, after which she would assume payment for future non-reimbursed medical expenses, and to permit her to claim their minor son as a tax exemption.1 The trial court increased Hoff’s child support obligation to $372 per month and awarded Sweeney $1,070 for one-half of the medical expenses already incurred, but refused to change visitation. This appeal followed.

Our review of a trial court’s determination regarding such matters as child support, spousal support, child custody, visitation, and property division is governed by Rule 52(a), N.D.R.Civ.P. Reede v. Steen, 461 N.W.2d 438, 440 (N.D.1990). Accordingly, we will not set aside a trial court’s determination, unless it is clearly erroneous. A finding is clearly erroneous when, although there is some evidence to support it, “the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.” Gabel v. Gabel, 434 N.W.2d 722, 723 (N.D.1989).

It is well-settled that courts which issue divorces and award child support retain the authority to modify the amount to be paid, or the method of payment, when there has been a showing that the circumstances of the parties have materially changed. Garbe v. Garbe, 467 N.W.2d 740, 742 (N.D.1991). Of particular importance is a change in the financial circumstances of the parties. “However, a change in financial circumstances by itself is not sufficient to modify child support without further inquiry about the cause of the change, including whether the change was permanent or temporary and whether it was due to a voluntary act or neglect on the part of the obligor.” Gabel v. Gabel, 434 N.W.2d at 723; Bloom v. Fyllesvold, 420 N.W.2d 327, 331 (N.D.1988); Cook v. Cook, 364 N.W.2d 74 (N.D.1985). One must also consider whether or not the change in circumstances was foreseen or contemplated at the time of the initial divorce decree or any subsequent modification. Cook v. Cook, 364 N.W.2d at 76; Muehler v. Muehler, 333 N.W.2d 432 (N.D.1983).

Before a trial court can determine whether or not there has been a material change of circumstances, it must engage in a fact-finding inquiry. Garbe v. Garbe, 467 N.W.2d at 744. Under Rule 52(a), N.D.R.Civ.P., a trial court is required to “find the facts specially and state separately its conclusions of law thereon.” “The purpose for requiring specific findings of fact under Rule 52(a) is to ‘enable the appellate court to understand the factual determination made by the trial court and the basis for its conclusions of law and judgment entered thereon.’ ” Garbe v. Garbe, 467 N.W.2d at 744 (quoting All Seasons Water Users v. Northern Improvement Co., 399 N.W.2d 278 (N.D.1987)).

The trial court, in its memorandum decision and order, stated that it “continues to follow the latest North Dakota Department of Human Services child support guidelines [11]*11effective date January 5, 1990.”2 Pertinent thereto is what Justice VandeWalle said, speaking for a majority of our Court in Garbe:

“While we have never held that the trial court may not follow the suggested guidelines if the child support awarded is fair and reasonable and supported by the evidence, see State ex rel. Younger [v. Bryant], [465 N.W.2d 155 (N.D.1991)], supra (Levine, J., concurring specially), the trial court must find a material change of circumstances before it can apply the guidelines. Only after the trial court determines that a material change of circumstances has occurred, without reference to the guidelines, can it proceed to modify the child support. See Younger, supra (VandeWalle, J., concurring specially). The disparity between the obligor’s current payments and the payments suggested by the guidelines cannot serve as a basis for finding a change in circumstances. Younger, supra.”

467 N.W.2d at 743.

In this case, the trial court made no specific finding of a material change in circumstances. Although under some circumstances a material change of circumstances may be inferred from a trial court’s general findings, “we have never affirmed a child support modification order when we could not discover whether or not the trial court’s determination was clearly erroneous due to a failure to comply with Rule 52(a).” Garbe v. Garbe, 467 N.W.2d at 744; Skoglund v. Skoglund, 333 N.W.2d 795 (N.D.1983); see also Anderson v. Anderson, 448 N.W.2d 181 (N.D.1989). In light of the current construction of our law by the majority of our Court, there is nothing within the trial court’s order which enables us to understand its decision justifying the increase in child support.3 Accordingly, that part of the third amended judgment increasing child support must be reversed and remanded for more specific findings. Just as we held in Garbe, “[t]he trial court may conduct further proceedings on its own motion or at the request of either party if additional evidence is deemed necessary to prepare the findings.” Garbe v. Garbe, 467 N.W.2d at 744.

Hoff also argues on appeal that the trial court’s judgment awarding Sweeney $1,070 for one-half of incurred medical expenses was not supported by the record. Counsel’s entire argument in support of this contention follows:

“At the hearing, Appellee testified that some portion of her claims for medical included charges for her child by her second husband (Sweeney). (R. 65) The testimony also shows that Appellant paid any deductibles and that his son was covered by his insurance.

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Sweeney v. Hoff
478 N.W.2d 9 (North Dakota Supreme Court, 1991)

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Bluebook (online)
478 N.W.2d 9, 1991 N.D. LEXIS 210, 1991 WL 244349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sweeney-v-hoff-nd-1991.