dissenting.
[¶43] Because the majority ignores controlling North Dakota precedent, is contrary to federal and state legislative and administrative history, mischaraeterizes the holdings of cited eases, and invites the problems unfettered discretion created for children, I dissent.
I
[¶ 44] In Dickson v. Dickson, 1997 ND 167, ¶ 17, 568 N.W.2d 284, we said:
[T]he court’s order of additional payment of noncovered medical expenses is an upward deviation from the guideline amount. N.D. Admin. Code § 75-02-04.1-09(2) provides a list of criteria that would justify a deviation from the amount of child support as calculated under the guidelines. Dalin v. Dalin, 545 N.W.2d 785, 787 (N.D. 1996). Nothing in the record indicates any of these criteria would apply in this case. One of the items justifying an upward deviation is “[t]he increased needs of children with disabling conditions or chronic illness.” N.D. Admin. Code § 75-02-04.1-09(2)(d). Stephanie Dickson offered no evidence of this or other grounds justifying an upward deviation from the guidelines, and offered no authority under the child support guidelines to justify the payment she seeks.
We also discussed the credit to income:
Under N.D. Admin. Code § 75-02-04.1-01(7)(e), payments of actual medical expenses are credited toward the obligor’s monthly gross income for purposes of calculating the obligor’s net monthly income. Steffes v. Steffes, 1997 ND 49, ¶ 35, 560 N.W.2d 888. The trial court did not make findings of monthly gross income or indicate the medical expenses were calculated as they should have been under the guidelines in computing Thomas Dickson’s net monthly income. See N.D. Admin. Code § 75-02-04.1-01(7) (“ ‘Net income’ means total gross monthly income less: ... (e) Payments made on actual medical expenses of the child or children for whom support is being sought”); see also Perala v. Carlson, 520 N.W.2d 839, 841 (N.D.1994) (“ ‘factors identified as not having been considered in developing the child support guidelines schedule ... may be included as criteria’ ” elsewhere (quoting Attorney General Opinion 93-22 (1993))).
Id. at ¶ 17 n. 2.
[¶ 45] In determining Gene Jarvis’s net monthly income of $1,227, for which the presumptively correct child support obligation for two children under the Child Support Guidelines is $356 per month, the trial court deducted his obligations for Medicare, FICA, and income taxes from his gross income. The trial court did not deduct the portion of the health insurance premiums Gene Jarvis was paying to provide coverage for the children, which N.D. Admin. Code § 75-02-04.1-01 requires to be deducted in determining a child support obligor’s net income.
[¶ 46] Applying the proper deduction under N.D. Admin. Code § 75-02-04.1-01 for a portion of the health insurance premiums does not, however, change Gene Jarvis’s child support obligation. Deducting the $31.50 per month conceded by Jennifer Jarvis to be the correct amount for his health insurance obligation results in a net monthly income of $1,195.50. Under N.D. Amin. Code § 75-02-*9404.1-02(5), “an obligor’s monthly net income amount ending in fifty dollars or more must be rounded up to the nearest one hundred dollars, and must otherwise be rounded down to the nearest one hundred dollars.” Thus, Gene Jarvis’s net monthly income must be rounded up to $1,200 per month, which, under N.D. Admin. Code § 75-02-04.1-10, results in a child support obligation of $856 per month for two children, which is his present obligation under the judgment.
[¶ 47] Regarding the requirement he pay one-half of the children’s medical expenses not covered by health insurance, Gene Jarvis argues “the trial court did not explain or make sufficient findings as to why there was an upward deviation from the guidelines to allow for this additional expense.” Payments of actual medical expenses are deducted from an obligor’s monthly gross income for purposes of calculating the obligor’s net monthly income and resulting Guideline child support obligation. Withey v. Hager, 1997 ND 225, ¶ 9, 571 N.W.2d 142; Dickson, 1997 ND 167, ¶ 17 n. 2, 568 N.W.2d 284. An order requiring a noncustodial parent to pay noncovered medical expenses in addition to child support in the presumptive amount under the Guidelines is an upward deviation from the Guideline amount. Dickson, at ¶ 17. To deviate from the Guideline amount of child support, a trial court must make specific findings demonstrating why the Guideline amount has been rebutted. Reinecke v. Griffeth, 533 N.W.2d 695, 700-01 (N.D.1995).
[¶ 48] In denying the new trial motion, the trial court briefly addressed health insurance and noncovered medical expenses:
Further, N.D.C.C. § 14-09-08.10(2), provides that a child support obligor who does not have health insurance available at no or nominal cost, may be ordered to obtain dependent health insurance or be liable for reasonable and necessary medical expenses of the child. The Court’s requirement that Gene pay these obligations for the benefit of his children is certainly appropriate and within the law.
The trial court did not make a finding supporting an upward deviation from the Guideline amount for noncovered medical expenses in accordance with N.D. Admin. Code § 75-02-04.1-09(2), which allows deviations in specified circumstances. No reason for an upward deviation for noncovered medical expenses is apparent from this review, and Jennifer Jarvis has not suggested one upon which the trial court may have relied. In view of the lack of findings, the trial court abused its discretion in this regard.
II
[¶ 49] Although the majority in a passing sentence cavalierly overrules Dickson without analysis, Dickson is clearly supported by federal and state legislative and administrative history.
[¶ 50] In understanding why Dickson is correct, it is important to review the history of the Child Support Guidelines, now repeated by the majority with material omissions, alterations, and miseharacterizations.
[¶ 51] In 1988, the federal government required the states to enact mandatory (“presumptively correct”) child support guidelines, in order to continue to receive federal funding of Ad to Families with Dependent Children (AFDC). Family Support Act of 1988, Pub.L. 100A85, codified primarily at 42 U.S.C. §§ 654, 666-667. The federal government also required the states to require the providing of health insurance coverage in child support orders in most cases. See 45 C.F.R. § 302.56(c)(3).
[¶ 52] The required child support guidelines were intended to provide adequate child support, while providing consistency and certainty to avoid the likelihood of litigation (and disrespect for and disregard of court judgments) encouraged by unfettered discretion. See Laura W. Morgan, Child Support Guidelines: Interpretation and Application (1998) §§ 1.01,1.02(e).
[¶ 53] Under federal regulations, states must require procuring of reasonably available health insurance for dependent children covered by the child support guidelines. 45 C.F.R. § 302.56(c)(3); Morgan, supra, § 3.01(a). A major reason for requiring health insurance was to reduce federal health insurance costs in IV-D eases. See 45 C.F.R. § 302.56(c)(3). Coverage was broadened to cover all cases to avoid equal protec*95tion problems. In addition, the federal government provided means to compel securing coverage, such as ordering the party required to secure insurance coverage to pay the actual expenses if available coverage is not secured.
[¶ 54] In the federal child support scheme, child health care expenses are divided into costs covered by insurance, ordinary costs not covered by insurance (such as deductibles and co-payments), and extraordinary costs. Morgan, supra, § 3.01. Insurance coverage must be required when available at a nominal or reasonable cost. 45 C.F.R. § 302.56(e)(3); Morgan, supra, § 3.01(a). Ordinary costs not covered by insurance (such as deductibles and co-payments) are factored into the “normal” guideline support amounts. Morgan, supra, § 3.01(b); Division of Family Services ex rel. J.L.M. by C.A.M. v. Buttram, 924 S.W.2d 870, 871 (Mo.Ct.App.1996) (ordering father to pay 50 percent of all uncovered medical expenses was improper deviation); Chirls v. Chirls, 170 A.D.2d 641, 566 N.Y.S.2d 931, 932-33, cert. denied, 78 N.Y.2d 853, 573 N.Y.S.2d 467, 577 N.E.2d 1059 (N.Y.1991) (ordinary and routine medical expenses are included in the basic award). Deviation from the presumptively correct guideline amount is permitted for extraordinary costs not covered by insurance. See Morgan, supra, § 3.01(b).
[¶ 55] Ordering an obligor to pay uncovered medical expenses is a deviation from the presumptively correct child support amount. Chirls, 566 N.Y.S.2d at 933; Buttram, 924 S.W.2d at 871.
[¶ 56] To comply with the federal requirements in the Omnibus Budget Reconciliation Act of 1987 and the Family Support Act of 1988, Senate Bill 2245 was introduced in the 1989 North Dakota Legislative Assembly. Hearing on S.B. 2245 Before the House Human Services and Veterans Affairs Comm., 51st N.D. Legis. Sess. (Mar. 10,1989) (testimony of Marcellus Hartze, Director of the Child Support Enforcement Agency for the N.D. Dept, of Human Services) [“House Hearing on S.B. 2245 ”]. S.B. 2245 included the provisions making the Guidelines mandatory and those requiring medical insurance. Hartze explained:
Current law — The current federal requirement on medical support requires the IVD agency to obtain medical support on IVD cases if the IV-D agency is seeking to enforce a child support obligation.
Additions or changes to current law intend to allow child support enforcement officials to effectively comply with regulations concerning medical support enforcement.
The bill makes a determination as to who may be obliged to provide health insurance coverage for a child. The obligee, or custodial parent, who has group dependent health insurance coverage available at no or nominal cost, would be the first choice of coverage. The second choice of coverage-would be the obligor who has available medical coverage through the obligor’s employment at no or nominal cost. If neither parent has health insurance available at no or nominal cost, the court may require the obligor to obtain insurance or to be liable for reasonable and necessary medical expenses of the child.
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The bill describes health insurance which is reasonable in cost if it is available to the obligor on a group basis or through an employer or union regardless of service delivery system. The federal rules apply the same description.
House Hearing on S.B. 224.5, supra, (testimony of Marcellus Hartze).
[¶ 57] In the Senate hearing, a department representative explained the sections of the bill:
Section 5 of the bill amends existing Section 14-09-09.10 concerning definitions.
******
3. The phrase “health insurance” is defined in a manner consistent with the requirements of 45 CFR § 306.51(a)(2), a part of the federal rulemaking done in conformance with Section 16 of the Child Support Enforcements of 1984.
* * * * * *
Sections 23 through 28 are related to medical support enforcement. [A]ll six sections are intended to allow child support enforcement officials to effectively comply *96with federal requirements concerning medical support enforcement....
Hearing on S.B. 22⅛5 Before the Senate Human Services and Veterans Affairs Comm., 51st N.D. Legis. Sess. (Jan. 27, 1989) (testimony of Blaine Nordwall, Chief Legal Counsel for the N.D. Dept, of Human Services).
[¶ 58] The legislature’s bill summary of S.B. 2245 states:
Generally, this bill:
As amended, establishes provisions relating to the direct payment of child support payments to the clerk of court, rebut-table presumptions that a child support amount in compliance with support guidelines is the correct amount, immediate withholding of income for payment of child support, periodic review of child support orders and notice of the review results, health insurance coverage for a child who is the subject of a child support order, and genetic rather than blood test for purposes of determining paternity. The bill has varying effective dates for different sections of the bill.
Bill Summary of S.B. 2215, 51st N.D. Legis. Sess. (Mar. 21,1989) (Prepared by the Legislative Council staff).
[¶ 59] Provisions of S.B. 2245 were codified as N.D.C.C. § 14-09-08.10:
1. Unless the obligee has comparable or better group dependent health insurance coverage available at no or nominal cost, the court shall order the obligor to name the minor child as beneficiary on any health insurance plan that is available to the obligor at no or nominal cost.
2. If the court finds that dependent health insurance is not available to the obligor or the obligee at no or nominal cost, the court may require the obligor to obtain dependent health insurance, or to be liable for reasonable and necessary medical expenses of the child.
(emphasis added). The plain language of the statute makes subsection 2 available only if the specified condition is met (“If’), and liability for “reasonable and necessary medical expenses” only in the alternative (“or”). The legislative history makes clear this statute was intended to secure insurance coverage for the child as required by federal statute and regulation. Ordinary child health care expenses not covered by insurance are included in the presumptively correct Guideline amount. Extraordinary health care costs not covered by insurance are grounds for deviation from the Guideline amount.
Ill
[¶ 60] The majority ignores Morgan’s enunciation of the law under the federal child support scheme, as outlined in ¶ 54: child health care expenses are divided into costs covered by insurance, ordinary costs not covered by insurance which are included in the basic support award, and extraordinary costs for which deviation from the presumptively correct guideline amount is permitted.
[¶ 61] In addition, the majority claims: “The North Dakota guidelines are unique from all other states in then treatment of ‘medical expenses.’ Morgan, supra, § 3.01[b][l] n. 21 (Supp.1998).” In fact, Morgan says one sentence in our Guidelines is unique (“North Dakota’s guidelines are unique with regards to medical expenses, providing that medical expenses paid are deducted from income.”) Except for that provision, discussed in Dickson, 1997 ND 167, ¶ 17 n. 2, 568 N.W.2d 284, allowing a deduction in the calculation of income, Morgan categorizes North Dakota among the broad number of states in its treatment of “uninsured and extraordinary medical expenses.” Morgan, supra, § 3.02(b) table 3-2. Even if, as the majority claims, there is the potential for a type of “double counting” in some cases, this would be a flaw in the calculation of income, not an alteration or rejection of the federal framework outlined above. The majority is unable to identify anything in the legislative or administrative history to support its interpretation.
[¶ 62] The majority cites, at ¶ 16, a number of cases which supposedly reflect that: “These state courts have found it within the trial court’s discretion to require, in addition to the child support award, payment of uninsured medical expenses.” In fact, most of the cases support the analysis of Dickson, and Morgan’s enunciation of the law omitted by the majority.
*97[¶ 63] The Indiana cases cited by the majority, Lulay v. Lulay, 583 N.E.2d 171, 172 (Ind.Ct.App.1991); Hazuga v. Hazuga, 648 N.E.2d 391, 395 (Ind.Ct.App.1995), reflect that ordinary uninsured medical expenses are included as a component in the basic guideline support amount. Indiana has specifically identified in its guidelines that six percent of the basic support amount is for ordinary uninsured medical expenses. Indiana Child Support Guideline 3(E)2. Only extraordinary medical expenses, which under the Indiana guidelines are those in excess of the six percent, are subject to additional allocation. Traman v. Traman, 642 N.E.2d 230, 238 (Ind.Ct.App.1994) (“The trial court erred because it did not require [the custodial parent] to spend a sum equal to 6% of the child support that she receives before [the noncustodial parent] is required to contribute towards payment of the .uninsured medical expenses.”) (footnote omitted). This is entirely consistent with Dickson and Morgan.
[¶ 64] Jamison v. Jamison, 845 S.W.2d 133, 136-37 (Mo.Ct.App.1993), upheld requiring the financially-able, noncustodial parent to contribute to uninsured medical expenses. The Jamison court noted, however, the child “was born with a chronic medical condition, which caused medical bills in excess of $15,-000 to accumulate.” Id. at 134. Under Dickson, Morgan, and the specific language of our Guidelines, a deviation is appropriate for such extraordinary medical expenses.
[¶ 65] In Holdsworth v. Holdsworth, 621 So.2d 71, 78 and n. 1 (La.Ct.App.1993), the court noted that extraordinary medical expenses may be assessed proportionately. The only medical expense issue in the appeal was whether these expenses should be assessed equally or based on “each parent’s percentage of gross income.” Id. at 78.
[¶ 66] These cases compel no change in the Dickson and Morgan analysis.4
[¶ 67] The majority opinion is inconsistent with the federal and state legislative and administrative histories and with the specific requirements of N.D. Admin. Code § 75-02-04.1-09(2)(d). It contravenes the federal goal of eliminating unfettered discretion, and invites the problems unfettered discretion created for children. See ¶ 52.
IV
[¶ 68] I would follow Dickson, Morgan, Guidelines, and statutes, and modify the judgment to require Gene Jarvis to pay $31.50 per month toward the premiums for children’s health insurance and to delete the impermissible requirement he pay one-half of the children’s ordinary uninsured medical expenses.
[¶ 69] Dale V. Sandstrom
. The opinion concurring in the result basically reasons that because the trial court could have but did not require Gene Jarvis to pay the entire amount of the insurance premium, the trial court could order him to pay one-half of uncovered medical expenses. This basically says, "If you don't do something you can, you can do something you can’t.” I would not adopt such a novel legal analysis.