Bergman v. Bergman

MESCHKE, Justice,

concurring.

Because the trial court did not consider the greater cost of supporting the first child in a household, as the guidelines dictate, I concur that the reduction of Gary’s support for Nicole, from $225 per month to $81 per month, must be reversed. However, I submit that a remand is unnecessary.

*248When there is not enough money for child support, there is surely not enough for more litigation. The reality is that $900 is simply not enough monthly net income for Gary to adequately contribute to the support of three households, Debra’s, Charlene’s, and his own. We should not worsen the shortage with more litigation expense. Instead of a remand, I would apply the law of the guidelines here.

What more could the trial court learn on remand about the needs of the children or the resources of the parents? Gary has debts over $35,000, no available assets, and a net income of only $896 monthly, with living expenses of $491 monthly. Debra has a net earned income of $950 monthly, with living expenses of $1,585 monthly. Charlene has a net earned income of $1,000 monthly, with living expenses of $1,570 monthly. Even a trial judge with the wisdom of Solomon would be unable to designate more than $400 monthly for Gary to allocate to the two custodial households.

I do not agree, as Justice Levine’s opinion asserts, that “the guidelines do not take into account either multifamilies or the allocation [of support] ... among children of the obligor’s multiple former partners.” The guidelines do consider those factors. NDAC 75-02-04.1-01(4)(e) directs that “[p]ayments actually made pursuant to a child support order, ... with respect to [children] for whom support is not being sought in the proceeding before the court” must be deducted from Gary’s net monthly income of $900 before computing support for each family.

So, after deducting the $243 ordered for payment to Charlene monthly for support of three children and not appealed, Gary’s income for calculating support payable to Debra is $657. Rounded to $700, as NDAC 75-02-04.1-02(5) directs, the scheduled monthly support amount for Debra under NDAC 75-02-04.1-10 would be $133 for one child. We should order that $133 as presumptively correct under the guidelines.

Reciprocally, if the support payable to Charlene is reconsidered, the guidelines would sustain the $243 ordered in Charlene’s case that has not been appealed. After deducting $133 monthly for the payment to Debra for support of one child, Gary’s income for calculating support to Charlene would be $767. Rounded to $800, as NDAC 75-02-04.1-02(5) directs, the scheduled monthly support amount for Charlene under NDAC 75-02-04.1-10 would be $232 for three children, a minor difference from the $243 ordered.

The guidelines direct that, when multiple support orders against a non-custodial parent exist, payments to each household must be factored. When several claims simultaneously come before the court, as here, the amounts must be synchronized. The presumptive law of the guidelines should be applied in cases consolidated for hearing. It is neither as intimidating as Justice Levine imagines, nor as inappropriate as Justice VandeWalle intimates. We can review Debra’s case without significantly affecting Charlene’s.

Judicial economy, too, suggests that the impoverished circumstances of these litigants not be worsened by an ineffective remand. I would direct that Gary’s support payment for Nicole be increased to $133. He can afford no more at this time, and the guidelines mandate it.