T.E.J. v. T.S. ex rel. T.S.

2004 ND 120, 681 N.W.2d 444, 2004 N.D. LEXIS 218, 2004 WL 1335739
CourtNorth Dakota Supreme Court
DecidedJune 16, 2004
DocketNo. 20030337
StatusPublished
Cited by10 cases

This text of 2004 ND 120 (T.E.J. v. T.S. ex rel. T.S.) 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
T.E.J. v. T.S. ex rel. T.S., 2004 ND 120, 681 N.W.2d 444, 2004 N.D. LEXIS 218, 2004 WL 1335739 (N.D. 2004).

Opinion

KAPSNER, Justice.

[¶ 1] T.E.J. (“Ted”)1 appealed from a second amended judgment declaring him the biological father of L.R.S.-J. (“Lisa”), setting his child support obligation, and awarding visitation. We hold the trial court did not err in determining Ted’s child support obligation or in setting the visitation schedule, and we affirm.

I

[¶2] Ted and the child’s mother, T.S. (“Tina”), were never married but lived together for about nine years prior to Lisa’s birth on October 4, 1997, in the state of Washington. Tina moved with Lisa to Mandan, North Dakota in August 1999. After helping Tina and Lisa settle in Man-dan, Ted returned to Washington. Prior to March 1999, Ted worked at various jobs across the country as an engineering design consultant. However, after Lisa’s birth, Ted decided he did not want to continue to work the long hours required by his consulting jobs. He then started a business providing temporary employees to other businesses and also began operating a cherry orchard. Neither business has been profitable.

[¶ 3] Ted brought this paternity action on May 24, 2002. After a hearing, the trial court declared Ted to be Lisa’s biological father, set past and future child support, and awarded visitation.

II

A

[¶ 4] On appeal, Ted asserts the trial court erred in setting his child support arrears and his future support payments. Child support determinations involve questions of law subject to the de novo standard of review, findings of fact subject to the clearly erroneous standard of review, and may involve matters of discretion subject to an abuse of discretion standard of review. Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines established by the Department of Human Services. Id. Section 14-09-09.7(3), N.D.C.C., creates a rebuttable presumption the amount of child support resulting from application of the guidelines is the correct amount of child support. Longtine v. Yeado, 1997 ND 166, ¶ 7, 567 N.W.2d 819. The presumptive amount of child support is the scheduled amount, which is based upon the obligor’s monthly net income and the number of children for whom support is being sought. Id.

[¶ 5] Using Ted’s tax returns, and making certain deductions and adjustments required or allowed by the guidelines, the court separately determined Ted’s support arrears for the years 1999, 2000, and 2001. See N.D. Admin. Code § 75-02-04.1-01(7). The court also determined Ted’s future support obligation by imputing income to Ted under N.D. Admin. Code. § 75-02-04.1-07(9), because the court found Ted had voluntarily changed his employment, resulting in a reduced income which was not reflective of his earning capability.

[¶ 6] Relevant to determining Ted’s support obligation, the trial court made the following findings:

[Ted] made a voluntary change in his employment in 1999 which resulted in reduction of his income. He was formerly employed in a technical field, as an electrical engineer, for about 15 [447]*447years. That occupation required [Ted] to periodically re-locate within the country, and to work long hours. In 1999, [Ted] chose to discontinue the pattern of taking positions as an electrical engineer which required periodic relocation, and to instead become involved in businesses which are not successful or which have failed, but which have required significant investments of his time and finan-, cial resources.

Ted concedes he and Tina jointly agreed after Lisa’s birth that Ted should not continue to work the long hours his electrical engineering design job required. Although Ted now argues he has not been able to find electrical engineering jobs, the record supports the trial court’s finding that Ted’s decision to stop working in electrical design and to instead take up self-employment was voluntary. We conclude the court’s finding that Ted voluntarily changed his employment is supported by the record and is not clearly erroneous.

B

[¶ 7] Ted , asserts the court erred in computing his child support arrears, because the court did not take into account the substantial losses Ted has incurred in his self-employed businesses, and, in particular, his cherry orchard. Under the guidelines, income includes “net income from self-employment.” N.D. Admin. Code § 75 — 02—04.1—01(5)(b). The guidelines define “net income from self-employment” to mean “total income,' for internal revenue service purposes,” with certain reductions. N.D. Admin. Code § 75-02-04.1-05(1). Torgerson v. Torgerson, 2003 ND 150, ¶ 15, 669 N.W.2d 98. However, under the guidelines, an obli-gor’s ability to pay child support is not determined solely upon actual income, but also takes into account the obligor’s earning capacity. Logan v. Bush, 2000 ND 203, ¶ 9, 621 N.W.2d 314.

[¶ 8] Generally, it is appropriate to establish child support arrears by using the obligor’s actual past annual income. In Interest of E.H., 1997 ND 101, ¶ 7, 564 N.W.2d 281. However, when there is a voluntary change in employment the guidelines specifically authorize the court, in its discretion, to impute income to the obligor. N.D. Admin. Code § 75-02-04.1-07(9); Logan, 2000 ND 203, ¶ 14, 621 N.W.2d 314. The court regarded Ted’s self-employed losses to be the result of Ted’s voluntary change of employment and not reflective of Ted’s earning capability. Courts do not operate in a vacuum in determining child support and must apply the guidelines using common sense in consideration of the circumstances. Minar v. Minar, 2001 ND 74, ¶ 20, 625 N.W.2d 518. Considering the circumstances here, and using, a common sense approach, the court computed Ted’s past child support, obligation for the years 1999, 2000, and 2001 based upon Ted’s actual income from all sources, but without deducting the self-employment losses, because those losses did not accurately reflect Ted’s earning capability. We conclude it was not' an abuse of discretion for the court to'refuse to deduct those losses from Ted’s other income in determining Ted’s child support arrears.

[¶ 9] The court determined that Ted had a support obligation of $830 per month for October through December 1999, for a total arrearage of $2,490, that he had a support obligation of $588 per month in the year 2000, for a total arrearage of $7,056, and that he had a support obligation of $427 per month for the year 2001, with a total arrearage of $5,124. We conclude the trial court’s determination of support for 1999, 2000, and 2001 is in accordance with the guidelines and is not clearly erroneous.

[448]*448C

[¶ 10] Ted also asserts the trial court erred in using the standard deduction, exemptions, and tax tables for 2002 to determine Ted’s net income for the years 1999, 2000, and 2001, rather than using the standard deduction, exemptions, and tax tables for each of those years. Tina concedes the court used the 2002 tax tables but she argues this had a negligible impact on the court’s calculations. She asserts Ted offered to provide the court with the appropriate forms and numbers but did not do so.

[¶ 11] A court can judicially notice tax rates and tax tables. See Berg v. Ullman, 1998 ND 74, ¶ 23, 576 N.W.2d 218.

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Cite This Page — Counsel Stack

Bluebook (online)
2004 ND 120, 681 N.W.2d 444, 2004 N.D. LEXIS 218, 2004 WL 1335739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tej-v-ts-ex-rel-ts-nd-2004.