concurring and dissenting.
[¶ 29] Because the evidence does not establish Paul Henry is underemployed for the purposes of the Child Support Guidelines, I respectfully dissent to part II of the majority opinion.
[¶30] Before Candice Henry filed for divorce, Paul Henry had filed to voluntarily separate from the Air Force. Subsequently, he sought to withdraw his request to separate from the Air Force, but the Air Force refused his request to stay in. He cannot earn the salary as an Air Force tanker navigator now that he is out of the Air Force and cannot get back in, yet the majority imputes a salary to him based on his salary as an Air Force tanker navigator.
[¶ 31] As Candice Henry points out in her brief:
“The trial court determined that the Appellant had the ability to earn a monthly net income of $3,600, and the trial court established the Appellant’s monthly child support obligation at $586.00 per month. (App. at 32). The trial court made this determination based upon one of the Appellant’s armed forces leave and earnings statements. (App. at 69).”
(Emphasis added).
[¶ 32] Under the Guidelines:
“An obligor is ‘underemployed’ if the obli-gor’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. l-07(l)(b) (emphasis added). Because being in the Air Force (or the ability to get back in) is a necessary occupational qualification for being an Air Force tanker navigator, Paul Henry lacks the necessary occupational qualification for that position. What was done here is equivalent to imputing the prevailing salary of orthopedic surgeons in the community to an obligor whose license to practice medicine had been revoked. At oral argument, Candice Henry conceded such imputation would be improper.
[¶ 33] The majority refers to testimony of the supervising officer suggesting Paul Henry might be able to get a position as a National Guard tanker navigator. Yet there is no evidence such a position is available in the “community,” which the Guidelines define as “any place within one hundred miles [160.93 kilometers] of the obligor’s actual place of residence.” N.D. Admin. Code § 75-02-04.1-07(l)(a).
[¶ 34] The majority asserts, at ¶ 19:
“Even if Paul was no longer in the Air Force, his work history and qualifications demonstrated an ability to earn at that level, like others did in the Grand Forks community. Even if he might not find the same work there, it was reasonable on this record for the trial court to infer he had the capacity to do other work there that would earn comparably.”
The problem with the majority’s bald assertion is there is no evidence Paul Henry was able to earn at that level of salary outside of the Air Force in the Grand Forks community. Nor was there any evidence “others ... in the Grand Forks community” with similar work history and occupational qualifications, outside of the Air Force, “earn at that level.”
[¶35] I concur in part I of the majority opinion. I would remand for calculation of child support consistent with the Guidelines.
[¶ 36] Dale V. Sandstrom