Whitmire v. Whitmire

1999 ND 56, 591 N.W.2d 126, 1999 N.D. LEXIS 58, 1999 WL 167557
CourtNorth Dakota Supreme Court
DecidedMarch 29, 1999
DocketCivil 980257
StatusPublished
Cited by20 cases

This text of 1999 ND 56 (Whitmire v. Whitmire) 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
Whitmire v. Whitmire, 1999 ND 56, 591 N.W.2d 126, 1999 N.D. LEXIS 58, 1999 WL 167557 (N.D. 1999).

Opinions

MARING, Justice.

[¶ 1] Burton L. Whitmire (Whitmire) appealed from a Fourth Amended Judgment modifying child support and awarding attorney fees to his former spouse, Audree Whit-mire (herein referred to as McLean, her surname). We hold the court erred in imputing income to Whitmire from his residence and in awarding attorney fees unsupported by proper documentation. We affirm in part, reverse in part, and remand for further proceedings.

[¶ 2] Whitmire and McLean were married in 1993, and together had one daughter of their marriage, Sierra. The parties divorced in December 1995, and McLean was awarded primary physical custody of Sierra with reasonable visitation for Whitmire. In June 1996 Whitmire filed a motion requesting the court to change Sierra’s primary physical custody to himself. McLean resisted the motion, alleging it was totally ungrounded, and requested attorney fees for the proceedings. On July 10, 1996, the trial court appointed a guardian ad litem and declared it would consider McLean’s motion for attorney fees at a later time.

[¶ 3] During March 1997 Whitmire failed to return Sierra from a scheduled visitation and left the state with her. On March 24, 1997 the trial court entered an order, based upon an emergency motion brought by McLean, awarding her exclusive custody of Sierra. Whitmire returned to the state with Sierra, and on April 4, 1997, the trial court entered a Second Amended Judgment placing custody of Sierra with McLean and ordering strictly supervised visitation for Whitmire. The Second Amended Judgment provided the parties would be responsible for their own attorney fees. Whitmire appealed from the Second Amended Judgment [128]*128and, because no evidentiary hearing had been held prior to its entry, this Court reversed that judgment in its entirety and remanded for further proceedings. Whitmire v. Whitmire, 1997 ND 214, ¶ 23, 570 N.W.2d 231.

[¶4] At the conclusion of the evidentiary hearing, the trial court stated from the bench it was not going to consider attorney fees “at this time,” but told McLean she could make a separate motion with regard to that issue. On February 26, 1998, a Third Amended Judgment was entered awarding custody of Sierra to McLean with supervised visitation for Whitmire.

[¶ 5] On March 26, 1998, McLean filed a motion with the trial court for a review of Sierra’s child support, reimbursement of medical expenses, and an award of attorney fees. After a hearing, the trial court ordered entry of a Fourth Amended Judgment, in which the court increased Whitmire’s child support obligation from $250 per month to $280 per month and continued Whitmire’s contribution to child care in the amount of $25 per month. The court also ordered Whitmire to reimburse McLean for one-half of Sierra’s medical expenses and awarded McLean $3,347 in attorney fees. Whitmire appealed.

Child Support

[¶ 6] Whitmire asserts the trial court erred in setting the child support amount by erroneously imputing rental income to him from a basement apartment in his residence and also from a house purchased by Whit-mire in McClusky. In Buchholz v. Buchholz, 1999 ND 36, ¶¶ 11-12, 590 N.W.2d 215, we reformulated our standard of reviewing trial court awards of child support:

Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. A court errs as a matter of law when it fails to comply with the requirements of the Guidelines....

As a matter of law, the district court must clearly set forth how it arrived at the amount of income and level of support. Berg v. Ullman ex rel. Ullman, 1998 ND 74, ¶ 18, 576 N.W.2d 218. “A proper finding of net income is essential to a determination of the correct amount of child support under the guidelines.” Schleicher v. Schleicher, 551 N.W.2d 766, 769 (N.D.1996). N.D. Admin. Code § 75-02-04.1-02(10) requires “a child support order include a statement of the obligor’s net income and ‘how that net income was determined.’ ” Id.

[¶ 7] At the June 1,1998 hearing, Whitmire testified he purchased a house in McClusky during 1997 for $3,500 and rented it to his sister for $200 per month. Whitmire testified he later gave the house to his parents because it was not livable and he did not want to be responsible for the taxes on it. The trial court imputed income to Whitmire of $200 per month for the McClusky house.

[¶8] Under the child support guidelines, the court can impose an upward deviation from the scheduled support amount if the obligor “has engaged in an asset transaction for the purpose of reducing the obligor’s income available for payment of child support.” N.D. Admin. Code § 75-02-04.1-09(2)(h). See also Wagner v. Wagner, 1998 ND 117, ¶ 7, 579 N.W.2d 207. The trial court found Whitmire purchased the McClusky house and soon thereafter transferred title to his parents, without compensation for it. The trial court implicitly found the gratuitous transfer of the house by Whit-mire was for the purpose of reducing his income for child support purposes. We conclude this implicit finding is supported by the record evidence and is not clearly erroneous. We further conclude the trial court did not abuse its discretion in imputing rental income to Whitmire from the McClusky house, resulting in an upward deviation from Whit-mire’s scheduled support obligation.

[129]*129[¶ 9] The trial court also imputed $350 of monthly rental income from a basement apartment in Whitmire’s residence. Whit-mire testified at the June 1, 1998, hearing he had previously rented the basement apartment in his residence for $350 per month, but his brother was now living there rent free and Whitmire was receiving no rental income from it. The child support guidelines expressly preclude the court from imputing income from an obligor’s homestead for purposes of determining the obligor’s child support obligation. The relevant language is found under N.D. Admin. Code § 75-02-04.1-09(2)(g) and (3):

2. The presumption that the amount of child support that would result from the application of this chapter, except for this subsection, is the correct amount of child support is rebutted only if a preponderance of the evidence establishes that a deviation from the guidelines is in the best interest of the supported children and:
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g. The increased ability of an obligor, who is able to secure additional income from assets, to provide child support;
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3. Assets may not be considered under subdivisions g and h of subsection 2, to the extent they:
a. Are exempt under North Dakota Century Code section 47-18-01; ...

N.D.C.C. § 47-18-01 defines the homestead exemption:

The homestead of any person, whether married or unmarried, residing in this state shall consist of the land upon which the claimant resides, and the dwelling house on that land in which the homestead claimant resides, with all its appurtenances, and all other improvements on the land, the total not to exceed eighty thousand dollars in value, over and above liens or encumbrances or both.

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Cite This Page — Counsel Stack

Bluebook (online)
1999 ND 56, 591 N.W.2d 126, 1999 N.D. LEXIS 58, 1999 WL 167557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitmire-v-whitmire-nd-1999.