Gooss v. Gooss

20200076
FILED NOVEMBER 19, 2020
CLERK OF THE SUPREME COURT
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2020 ND 233

Vickie M. Gooss, nka Vickie M. Lenard, Plaintiff
v.
Jeffrey A. Gooss, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest
and Appellee

No. 20200076

Appeal from the District Court of Mercer County, South Central Judicial
District, the Honorable David E. Reich, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Jennifer M. Gooss, Beulah, N.D., for defendant and appellant.

Sheila K. Keller, Special Assistant Attorney General, Bismarck, N.D., for
statutory real party in interest and appellee.
 Gooss v. Gooss
No. 20200076

VandeWalle, Justice.

[¶1] Jeffrey Gooss appealed from a second amended judgment after a district
court modified his child support obligation. We affirm.

I

[¶2] Jeffrey Gooss and Vickie Gooss, now Vickie Lenard, divorced in Nevada
in 2004. This action concerns child support for the parties’ child, J.T.G., who is
now eighteen. In 2004, the Nevada court granted Lenard primary residential
responsibility for J.T.G. The court awarded Gooss parenting time and required
him to pay child support at $350.00 per month, which included $50.00 in child
support arrears. In the event Lenard relocated from Nevada to Colorado,
Gooss’s child support obligation would be waived, and he would only bear
travel expenses for himself and J.T.G. However, Lenard never relocated to
Colorado, but she did relocate on multiple occasions to several other states with
J.T.G.

[¶3] In 2009, the Nevada court granted Lenard permission to relocate to
Montana with J.T.G. The court required Lenard to pay all travel expenses, and
Gooss was required to pay $350 in child support. In 2013, the Nevada court
modified the child custody order in line with a stipulation entered into by
Lenard and Gooss. As part of this modification, Gooss was ordered to “pay child
support of $350.00 for the month of March, 2013; payment of travel expenses
[would] constitute child support thereafter.”

[¶4] Gooss later moved to North Dakota, and Lenard moved to South Dakota
with J.T.G. In July 2018, South Dakota’s child support program requested the
North Dakota Child Support Division assist in reviewing and modifying
Gooss’s child support obligation. On September 9, 2019, the State of North
Dakota filed a motion for modification of child support. The State requested a
modification of the medical support provision and that Gooss pay a modified
child support amount of $709 per month.

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[¶5] Gooss filed a countermotion to dismiss and a response to the State’s
motion. Gooss challenged the district court’s jurisdiction to modify the child
support originally ordered by the Nevada court. Gooss argued travel expenses
were part of the parenting plan and North Dakota lacked jurisdiction to modify
the child custody arrangement issued by another state under the Uniform
Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Gooss also
challenged the calculation of child support, argued imposing child support was
inequitable, and claimed a deviation for travel expenses was necessary. The
district court held a hearing on the motions where it heard testimony and
considered evidence.

[¶6] On January 16, 2020, the district court issued its order modifying child
support. In its order, the district court found it had jurisdiction to order the
child support modification under the Uniform Interstate Family Support Act
(“UIFSA”). The court modified the child support obligation and required the
State to update the calculations based on information received during the
hearing. Gooss testified at the hearing to the amount of expenses he incurred
for gas, oil changes, alignments, tires, and tire rotations to exercise his
parenting time. The court noted Gooss was allowed to exercise seven parenting
time visits per year. However, the court found Gooss exercised only four of
these visits. The court granted Gooss a downward deviation of $3,000 based on
Gooss paying for travel expenses for the four visits. The district court issued
its findings of fact, conclusions of law, order for second amended judgment and
its second amended judgment after the State filed its post-hearing
recommendations and updated child support calculations. Gooss was ordered
to pay child support in the amount of $582.

II

[¶7] Gooss argues the district court did not have jurisdiction to modify the
child support obligation under the UIFSA. A question regarding subject matter
jurisdiction with no factual dispute is reviewed de novo by this Court.
Harshberger v. Harshberger, 2006 ND 245, ¶ 16, 724 N.W.2d 148. Reviewing
the jurisdiction of the district court requires interpreting the uniform laws that

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govern child support, the UIFSA, and child custody, the UCCJEA. This Court
has held,

Statutory interpretation is a question of law, which is fully
reviewable on appeal. Nelson v. Johnson, 2010 ND 23, ¶ 12, 778
N.W.2d 773. The primary purpose of statutory interpretation is to
determine the intention of the legislation. In re Estate of Elken,
2007 ND 107, ¶ 7, 735 N.W.2d 842. Words in a statute are given
their plain, ordinary, and commonly understood meaning, unless
defined by statute or unless a contrary intention plainly appears.
N.D.C.C. § 1-02-02. If the language of a statute is clear and
unambiguous, “the letter of [the statute] is not to be disregarded
under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. If the
language of the statute is ambiguous, however, a court may resort
to extrinsic aids to interpret the statute. N.D.C.C. § 1-02-39.

Ferguson v. Wallace-Ferguson, 2018 ND 122, ¶ 7, 911 N.W.2d 324 (quoting
Zajac v. Traill Cty. Water Res. Dist., 2016 ND 134, ¶ 6, 881 N.W.2d 666).
“Statutes are to be construed as a whole and harmonized to give meaning to
related provisions.” Id. at ¶ 8 (citing N.D.C.C. § 1-02-07). This Court has held
uniform laws are interpreted in a uniform manner, and the Court may seek
guidance from decisions in other states which have interpreted similar
provisions of uniform laws. Id.

[¶8] The National Conference of Commissioners on Uniform Laws first
approved the UIFSA in 1992, and revised it in 1996, 2001, and 2008. Ferguson,
2018 ND 122, ¶ 6. North Dakota first enacted the UIFSA in 1995, and
incorporated the 2008 amendments effective in 2015, which are codified at
N.D.C.C. ch. 14-12.2. Id. at ¶¶ 6-7. “UIFSA governs, among other things, the
procedures for establishing, enforcing, and modifying child support orders
when more than one state is involved.” Id.

[¶9] “Support order” is defined under the UIFSA as:

a judgment, decree, order, decision, or directive, whether
temporary, final, or subject to modification, issued in a state or
foreign country for the benefit of a child, a spouse, or a former
spouse, which provides for monetary support, health care,

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 arrearages, retroactive support, or reimbursement for financial
assistance provided to an individual obligee in place of child
support. The support order may include related costs and fees,
interest, income withholding, automatic adjustment, attorney's
fees, and other relief.

N.D.C.C. § 14-12.2-01(28) [UIFSA § 102(28) (2008)]. “Child support order” is
defined as “a support order for a child, including a child who has attained the
age of majority under the law of the issuing state or foreign country.” N.D.C.C.
§ 14-12.2-01(2) [UIFSA § 102(2) (2008)]. UIFSA grants North Dakota courts
the ability to modify child support orders issued in another state. N.D.C.C.
§ 14-12.2-45 [UIFSA § 611 (2008)]. The statute states:

[U]pon petition a tribunal of this state may modify a child support
order issued in another state which is registered in this state if,
after notice and hearing, the tribunal finds that:

a. The following requirements are met:

(1) Neither the child, nor the obligee who is an
individual, nor the obligor resides in the issuing state;

(2) A petitioner who is a nonresident of this state seeks
modification; and

(3) The respondent is subject to the personal jurisdiction
of the tribunal of this state . . . .

Id.

[¶10] The UCCJEA is another uniform law. Its purpose is to “avoid
jurisdictional competition and conflicts with courts of other States in matters
of child custody which have in the past resulted in the shifting of children from
State to State with harmful effects on their well-being.” Schirado v. Foote, 2010
ND 136, ¶ 10, 785 N.W.2d 235 (citing Uniform Child Custody Jurisdiction and
Enforcement Act § 101 cmt. 1, 9 U.L.A. 657 (1999)). North Dakota adopted its
version of the UCCJEA in 1999. Id. The law is codified at N.D.C.C. ch. 14-14.1.
Id.

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[¶11] Section 14-14.1-01, N.D.C.C. [UCCJEA § 102(3) (1997)], defines child
custody determination as,

a judgment, decree, or other order of a court providing for the legal
custody, physical custody, or visitation with respect to a child. The
term includes a permanent, temporary, initial, and modification
order. The term does not include an order relating to child support
or other monetary obligation of an individual.

(Emphasis added); see also In re M.S.C., No. 05–14–01581-CV, 2016 WL
929218, at *7-8 (Tex. App. Mar. 11, 2016) (finding allocation of travel expenses
constituted part of a child support order and the UCCJEA did not apply as the
court’s jurisdiction under the UIFSA was proper). The UCCJEA prohibits
North Dakota from modifying a child custody determination made by a court
in another state, unless North Dakota has temporary emergency jurisdiction
or jurisdiction to make an initial determination. N.D.C.C. § 14-14.1-14
[UCCJEA § 203 (1997)].

[¶12] The facts regarding jurisdiction in this case are not in dispute. First,
Gooss, Lenard, and J.T.G. no longer live in Nevada. Gooss lives in North
Dakota, and Lenard lives in South Dakota with J.T.G. Second, Lenard, a
nonresident of North Dakota, sought modification of the child support order.
Third, Gooss is also subject to the personal jurisdiction of North Dakota under
N.D.R.Civ.P. 4(b)(1) because he lives here. The requirements for the district
court to modify child support under the UIFSA were met.

[¶13] The Nevada court intended to make the travel expenses part of the child
support order as it stated that “payment of travel expenses will constitute child
support thereafter.” The required payment of travel expenses relates to the
“child support or other monetary obligation” of Gooss. As a result, the payment
of travel expenses constitutes part of a child support order under a plain
reading of the UIFSA. Additionally, a plain reading of the UCCJEA precludes
this obligation from the custody arrangement because the UCCJEA specifically
does not include orders “relating to child support or other monetary obligation
of an individual.” N.D.C.C. § 14-14.1-01(2) [UCCJEA § 102(2)]. Therefore, the

5
travel expenses constituted child support and the district court’s jurisdiction
under the UIFSA was both met and proper.

III

[¶14] Gooss argues it was inequitable for the district court to require him to
pay child support including travel expenses. “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.” Grossman v. Lerud, 2014 ND 235, ¶ 6, 857
N.W.2d 92 (quoting State ex rel. K.B. v. Bauer, 2009 ND 45, ¶ 8, 763 N.W.2d
462). “A finding of fact is clearly erroneous if it is induced by an erroneous view
of the law, if no evidence exists to support it, or if, on the entire record, we are
left with a definite and firm conviction that a mistake has been made.” Richter
v. Houser, 1999 ND 147, ¶ 3, 598 N.W.2d 193.

[¶15] Under section 14-09-09.7(1), N.D.C.C., the department of human
services is required to “establish child support guidelines to assist courts in
determining the amount a parent should be expected to contribute toward the
support of the child . . . .” “If the district court fails to comply with the child
support guidelines in determining an obligor’s child support obligation, the
court errs as a matter of law.” Grossman, 2014 ND 235, ¶ 6 (quoting Serr v.
Serr, 2008 ND 56, ¶ 18, 746 N.W.2d 416). “The interpretation and proper
application of a provision of the child support guidelines is a question of law,
fully reviewable on appeal.” State ex rel. K.B., 2009 ND 45, ¶ 8. “The failure to
properly apply the child support guidelines to the facts involves an error of
law.” Id. (quoting Korynta v. Korynta, 2006 ND 17, ¶ 18, 708 N.W.2d 895). A
district court “must clearly set forth how it arrived at the amount of income
and the level of support.” Lohstreter v. Lohstreter, 2001 ND 45, ¶ 21, 623
N.W.2d 350. The child support guidelines explicitly allow a downward
deviation for travel expenses. N.D. Admin. Code § 75-02-04.1-09(2)(j).

[¶16] Here, Gooss argues requiring him to bear all the costs of travel is
inequitable. The court heard testimony and received information regarding
Gooss’s income and expenses. The court used and applied this information to
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the child support guidelines. Using the guidelines, including the provided
deviation for travel expenses, the court determined the amount of child support
Gooss was required to pay. By applying the deviation in accordance with the
guidelines, the court did not reach an inequitable result when it determined
that travel expenses made up a portion of the child support due.

IV

[¶17] Gooss also contends the court erred when it calculated the deviation for
travel expenses. “There is a rebuttable presumption that the amount of child
support that would result from the application of the child support guidelines
is the correct amount of child support.” N.D.C.C. § 14-09-09.7(4). Deviations
are allowed from the presumably correct amount in some circumstances. N.D.
Admin. Code § 75-02-04.1-09. For a deviation to occur, the person requesting
one must prove by a preponderance of the evidence that a deviation is in the
best interest of the child. See N.D. Admin. Code § 75-02-04.1-09(2); Tibor v.
Tibor, 2001 ND 43, ¶ 17, 623 N.W.2d 12. Granting a deviation is within the
discretion of the district court. Pember v. Shapiro, 2011 ND 31, ¶ 37, 794
N.W.2d 435. “A court abuses its discretion when it acts in an arbitrary,
unreasonable, or unconscionable manner or when its decision is not the
product of [a] rational mental process.” Lohstreter, 2001 ND 45, ¶ 16.

[¶18] The relevant provision regarding a deviation for travel expenses states,

2. The presumption that the amount of child support . . . 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:

....

j. The reduced ability of an obligor who is responsible for
all parenting-time expenses to provide support due to
travel expenses incurred predominantly for the
purpose of visiting a child who is the subject of the
order taking into consideration the amount of court-
ordered parenting time and, when such history is
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 available, actual expenses and practices of the
parties[.]

N.D. Admin. Code § 75-02-04.1-09(2)(j).

[¶19] Gooss argues the district court erred when it determined the number of
parenting time visits for the travel expense deviation. Gooss claims the court
should have used the seven visitations allowed by the custody order instead of
the four the court found Gooss actually exercised. However, under a plain
reading of the guidelines, the court can take into consideration the “actual
expenses and practices of the parties.” After hearing testimony and weighing
the evidence, the court found Gooss actually exercised only four visitations
instead of the seven he was allowed under the parenting plan. The court used
this finding to grant a downward deviation for travel expenses in the amount
of $3,000. The court did not abuse its discretion by applying the actual number
of visitations to the deviation for travel expenses pursuant to the guidelines.

V

[¶20] We affirm the second amended judgment.

[¶21] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte

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