Berg v. Ullman Ex Rel. Ullman

NEUMANN, Justice,

dissenting.

[¶ 30] Because the majority addresses issues not raised below nor on appeal, and more importantly because in doing so the majority radically alters the role of trial courts in child support cases, I dissent.

[¶ 31] Misty Ullman moved for an increase in Derek Berg’s child support obligation, arguing Berg is underemployed under N.D. Admin. Code § 75-02-04.1-07 and should have a larger income imputed to him. Ull-man asserted Berg is capable of earning $5.82 per hour, the amount an average delivery person earns, according to the Fargo Wage and Benefit Survey of 1996. Ullman also asserted Berg has not attempted to seek more gainful or full-time employment.

*225[¶ 32] Berg resisted Ullman’s motion, arguing he is currently paying child support based on full-time employment at minimum wage, an amount close to the $614 per month net income he is earning. Berg’s work history shows his only employment has been working at Domino’s; he has no other skills. Berg argued delivering pizzas is not comparable to delivering merchandise such as appliances and furniture, and therefore, he is not able to earn the average wage of delivery persons as reflected in the 1996 Fargo Wage and Benefit Survey.

[¶ 33] The trial court denied Ullman’s motion, stating it had no basis on which to impute additional income. Ullman appealed.

[¶ 34] On appeal, Ullman argued the trial court was clearly erroneous in determining Berg is not underemployed under N.D. Admin. Code § 75-02-04.1-07. Both parties argued extensively whether Berg was underemployed. However, the trial court did not find Berg was not underemployed. The trial court simply denied the motion “on the grounds that there is no basis to impute income in addition to the income imputed by the amended judgment dated July 24, 1996....” A review of the referee’s July 1996 findings shows Berg was already considered to be underemployed. The referee found Berg was only working part time, and was not suffering from a disability precluding him from working full time. The trial court, therefore, ordered Berg to pay child support based on full-time minimum wage by approving the referee’s findings. These findings were not appealed.

[¶ 35] A trial court is authorized to impute income to an obligor only if the obligor is unemployed or underemployed. N.D. Admin. Code § 75-02-04.1-07(3); see also Nelson v. Nelson, 547 N.W.2d 741, 746-47 (N.D.1996) (stating adequate evidence must be presented to find an obligor is underemployed, or income cannot be imputed). Because the trial court imputed income to Berg in 1996, it is clear the trial court considered him underemployed.

[¶ 36] A trial court’s determinations of child support are findings of fact and will be affirmed unless they are clearly erroneous. In Interest of E.H., 1997 ND 101, ¶ 3, 564 N.W.2d 281. Likewise, a determination regarding underemployment is also a finding of fact. Kjos v. Brandenburger, 552 N.W.2d 63, 63-64 (N.D.1996). A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if even though there is some evidence to support it, the reviewing court is left with a definite and firm conviction a mistake has been made. Id.

[T37] The issue before the trial court and raised on appeal was whether Berg should be required to pay additional child support based on his underemployment. The North Dakota Administrative Code § 75-02-04.1-07 authorizes income to be imputed to an underemployed child support obligor based on the obligor’s earning capacity rather than his actual earned income. Surerus v. Matuska, 548 N.W.2d 384, 386 (N.D.1996); Nelson, 547 N.W.2d at 744.

[¶ 38] By definition, “[a]n obligor is ‘underemployed’ if the obligor’s gross income from earnings is significantly less than prevailing amounts earned in the community by persons with similar work history and occupational qualifications.” N.D. Admin. Code § 75-02-04.1-07(l)(b). When an obligor is found to be underemployed, N.D. Admin. Code § 75-02-04.1-07(3), outlines the trial court’s options for imputing income:

“3. Except as provided in subsections 4 and 5, monthly gross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross earnings, must be imputed to an obligor who is unemployed or underemployed.
a. An amount equal to one hundred sixty-seven times the hourly federal minimum wage.
b. An amount equal to six-tenths of prevailing gross monthly earnings in the community of persons with similar work history and occupational qualifications.
c. An amount equal to ninety percent of the obligor’s greatest average gross monthly earnings, in any twelve months beginning on or after thirty-six months before commencement of the proceeding before the *226court, for which reliable evidence is provided.” N.D. Admin. Code § 75-02-04.1-07(3).

Because the trial court had already required Berg to pay the amount under subdivision a, and Ullman did not contest the amount already imputed, subdivision a was not at issue. Because subdivision e clearly does not apply, Ullman had the burden to show she was entitled to more child support under subdivision b. Therefore, Ullman was required to prove the amount currently imputed to Berg under N.D. Admin. Code § 75-02-04.1-07(3)(a) was less than six-tenths of the prevailing earnings in the community of persons with similar work history and occupational qualifications, under N.D. Admin. Code § 75-02-04.1-07(3)(b).

[¶ 39] The majority goes through the motions of showing how Ullman failed to prove she was entitled to more child support under N.D. Admin. Code § 75-02-04.1-07(3)(b), and affirms the trial court on this point. This was the only issue before the trial court, and the only issue raised before this Court on appeal. Affirming this issue should conclude the case. Unfortunately, the majority does not stop there. The majority then reverses and remands the case to the trial court based on the calculation of support already imputed — an amount never questioned below, and never questioned on appeal. The majority, at length, expounds on Berg’s failure to work full time, and his failure to attend school. Those facts are irrelevant. The record clearly shows Berg was earning less than full-time wages at minimum wage, yet he was paying a child support obligation based, on full-time minimum wage under N.D. Admin. Code § 75-02-04.1~07(3)(a).

[¶ 40] The majority has done a masterful job of re-lawyering this case, and in doing so, has faulted a fair and impartial trial judge for declining to choose sides. The burden the majority now places on trial courts radically alters the role of trial judges in child support cases, from fair and impartial adjudicators, to advocates for obligees.

[¶ 41] Re-lawyering is not the appropriate role of an appellate court. It is contrary to our own precedents. On countless occasions this Court has shown its disapproval for retrying cases when reasonable evidence in the record supports the trial court’s findings. Robert, et al. v. Aircraft Inv. Co., 1998 ND 62, ¶ 10; Reimche v. Reimche, 1997 ND 138, ¶ 13, 566 N.W.2d 790; Thompson v. City of Watford City, 1997 ND 172, ¶ 12, 568 N.W.2d 736; Matter of Estate of Nelson, 553 N.W.2d 771, 774 (N.D.1996); Buzick v. Buzick, 542 N.W.2d 756, 758 (N.D.1996); Mahoney v. Mahoney, 538 N.W.2d 189, 193 (N.D.1995); Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 859 (N.D.1995). As we stated in Morales v. Morales, 402 N.W.2d 322, 324 (N.D. 1987), “it no longer is the function of this court to scour the record for issues which could lead to a result we might believe to be more desirable, and we must resist the urge to retry the case for the parties.” “The existence of any doubt as to whether the trial court or this Court is the ultimate trier of fact issues in non-jury cases is, we think, detrimental to the orderly administration of justice, impairs the confidence of litigants and the public in the decisions of the district courts, and multiplies the number of appeals in such cases.” Buzick, 542 N.W.2d at 758 (citations omitted). Likewise, this Court has also disapproved of considering issues on appeal not raised before the trial court, and has generally not entertained such issues. Matter of Estate of Peterson, 1997 ND 48, ¶ 19, 561 N.W.2d 618; RLI Ins. Co. v. Heling, 520 N.W.2d 849, 854 (N.D.1994); State v. Tweed, 491 N.W.2d 412 417-18 (N.D.1992); Christensen v. Christensen, 397 N.W.2d 456, 457 (N.D.1986); Bard v. Bard, 380 N.W.2d 342, 344 (N.D.1986). In Hansen v. Winkowitsch, 463. N.W.2d 645, 646 (N.D.1990), we held “[Tissues or contentions not adequately developed and presented at trial are not properly before this Court.”

[¶ 42] This case is much like Mahoney v. Mahoney, 1997 ND 149, 567 N.W.2d 206. In Mahoney, the obligor claimed the trial court clearly erred in adopting the special master’s computation of net income. Id. at ¶ 10, 567 N.W.2d 206. The obligor claimed the special master erred by not using the tax tables and standard deductions to determine the obli-gor’s income to calculate his child support obligation. Id. at ¶¶ 10-11, and n. 1, 567 *227N.W.2d 206. We refused to entertain the issue of miscalculation of net income because that issue was not raised below. Id. at ¶ 15, 567 N.W.2d 206. In the present case, neither party raised the issue of a miscalculation; it was created by the majority. As we stated in Mahoney, “[generally, the failure to file timely objections to the report and recommendation of a special master waives the right to appeal the recommended findings _ [T]he litigants have a responsibility to assist the process ... by making their timely objections to the report....” Id. at ¶ 12, 567 N.W.2d 206. We do not address issues or contentions for the first time on appeal; to do so gives a party a chance to redo what should have been done in the first place. Id. at ¶ 18, 567 N.W.2d 206. “Requiring a party to first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.” Id. at ¶ 13, 567 N.W.2d 206. In the pursuit of a short-sighted vision of justice, the majority has abandoned its impartiality, and has faulted a trial judge for maintaining hers.

[¶43] The majority recognizes the increased minimum wage rate was not called to the trial court’s attention. I do not see how this differs from the miscalculation issue in Mahoney. I agree the trial court could have judicially noticed the increased minimum wage rate under Rule 201, N.D.R.Evid., in one of two ways. First, the trial court could have judicially noticed the increased minimum wage rate at Ullman’s request.8 The trial court, in its discretion, also could have judicially noticed the minimum wage sua sponte. Under Rule 201(d), N.D.R.Evid., judicial notice is mandatory only if it is requested by a party and the trial court is supplied with the necessary information. As noted Rule 201, N.D.R.Evid., Explanatory Note, judicial notice should not be used as a device on appeal to correct an almost complete failure to present adequate evidence to the trial court. That is precisely what the majority has done here.

[¶ 44] A recent study of proposed changes to rules on judicial notice in the federal courts addresses judicial notice of law. Paul R. Rice, The Evidence Project: Proposed Revisions to the Federal Rules of Evidence, 171 F.R.D. 330 (1997). “Judicial notice of law does not shift from the parties to the court the duty to develop the case and ferret out the application of law. It remains the duty of the parties to bring to the court’s attention the rule of law governing the ease.... ‘A trial court cannot be convicted of error for something not brought to its attention.’ ” Id. at 410, Commentary, (quoting Great American Ins. v. Glenwood Irrigation Co., 265 F. 594, 597 (C.C.A.8th., 1920)).9

[¶45] Public policy may abhor a parent’s avoiding a child support obligation, as the majority correctly notes, but public policy has not yet placed the burden on a respondent to prove a movant’s case, nor has public policy declared trial judges should abandon even the appearance of impartiality, and actively assume the management and presentation of a movant’s case. Child support or not, our district courts are still courts of law, bound by strictures of fairness and impartiality, including the Rules of Judicial Conduct10 and the requirements of due process. “A trial court must decide factual matters only upon the evidentiary record of testimony and exhibits in that court.” State v. LaMorie, 558 N.W.2d 329, 331 (N.D.1996). As we not*228ed in State v. Foard, 355 N.W.2d 822, 824 (N.D.1984), “[A] judge’s authority to unilaterally elicit evidence is not unbounded but is tempered by the requirement that a judge at all times remain impartial. A judge may not be a partisan advocate for either side and in conducting a trial must respect the traditional rules and concepts which guaranty the defendant’s right to a fair trial.” By placing the burden of mandatory sua sponte judicial notice on the trial courts, the majority requires the trial courts to become advocates for child support obligees. This is not the role our trial courts should take in determining child support matters.

[¶ 46] The majority also creates its own issue by asserting Berg failed to provide adequate information of his earnings under N.D. Admin. Code § 75-02-04.1-02(7). This issue, likewise, was not raised by a party before the trial court, nor on appeal. The majority looks to N.D. Admin. Code § 75-02-04.1-02(7) to attempt to shift the burden of production and persuasion to Berg. The majority cites Berg’s incomplete documentation of his income as a reason for reversal. However, the majority fails to recognize N.D. Admin. Code § 75-02-04.1-07(8) provides its own remedy for any failure to provide information of an obligor’s income. See also N.D.C.C. § 14-09-08.6(2) (stating “[i]f information concerning obligor’s income sufficient to accomplish the review has not been timely furnished by the obligor, the child support agency may apply to the court for an order compelling the obligor to furnish information sufficient to accomplish the review.”). . N.D. Admin. Code § 75-02-04.1-07(8), provides:

“If the obligor fails, upon reasonable request made in any proceeding to review a child support obligation, to furnish rehable information concerning the obligor’s gross income from earnings, income must be imputed based on the greatest of:
a. Subdivisions a through c of subsection 3; or
b. The obligor’s income, at the time the child support order was entered or last modified, increased at the rate of ten percent per year.”

Berg’s alleged failure to provide rehable information about his income was simply not an issue. Ullman s attorney served a subpoena duces tecum on Berg, requesting he bring the following financial information to the hearing: (1) all pay stubs, wage statements and W-2 forms from the previous year; and, (2) all federal and state income tax returns for the years 1995 and 1996. However, at the hearing, Ullman’s attorney did not request production of the documents, and the information contained in them simply was not an issue. The transcript of the hearing reveals Ullman’s attorney agreed with the figures presented on Berg’s income. During the hearing, Ullman’s attorney stated:

“I have read the brief of Ms. Holman [Berg’s attorney] in regard to the amounts of money or the figures that she’s alleging. I believe she reads it correctly. So I don’t believe that is an issue. I believe it’s purely a matter of underemployed. Our issue is that there is a presumption if you’re under 90 — or under 60 percent employed — or under 60 percent of what people in the community make with your expertise and skill that you’re underemployed.”

Nowhere in the transcript is Berg asked to produce a copy of his tax return, or other wage information other than the pay stub and financial affidavit which he provided. Other statements in the transcript by Ull-man’s attorney reflect his acknowledgment that Berg was already paying support based on full-time minimum wages. For example, Ullman’s attorney, stated: “The only reason he’s even paying minimum wage — or being charged at minimum wage is because the Court ordered that he was going to be assessed at that amount.”

[¶ 47] Based on the evidence actually presented and the arguments actually made, I do not believe it was clearly erroneous for the trial court to find there was no basis to impute further income in addition to what had already been imputed. I would affirm on the issues raised and argued and leave this ease at that.

[¶ 48] William A. Neumann

.Agency history shows N.D. Admin. Code § 75-02-04.1-07(3)(a) is to be proven: “Subsection 3 is the heart of the section. It requires imputation based on earning capacity equal to the greatest of three alternatives, less actual earnings. Subdivision a is the monthly equivalent income for working full time at federal minimum wage. This will form the baseline, and it may be proved by judicial notice of the hourly federal minimum wage.” Summary of Draft Changes to N.D. Admin. Code ch. 75-02-04.1, March 14, 1994, Comments of Blaine Nordwall, before the North Dakota Department of Human Services (emphasis added). <

. Rule 201, N.D.R.Evid., is patterned after Rule 201 F.R.Evid., and we may look to persuasive federal authority for interpretation of our rules. Aggie Investments v. Public Serv. Comm’n, 470 N.W.2d 805, 811 (N.D.1991).

. Canon 2A, North Dakota Code of Judicial Conduct.