specially concurring.
The child support guidelines herald a new era in many respects and, as this case illustrates, they elevate into prominence the concept of in-kind income. It may well be that trial judges have always taken into account, sub rosa, a stepparent’s income, when determining how much child support the stepparent’s noncustodial spouse must pay. The relevance of in-kind income is not new. This court relied on in-kind income to affirm a trial court judgment that did not assess child support against a noncustodial parent whose children lived with their father in the former family home. Hugret v. Hugret, 386 N.W.2d 26, 29 n. 5 (N.D.1986). [“Bonita is in effect providing ‘child support’ to the extent that Peter and the children are allowed to live in the family home rent free until the youngest child reaches the age of majority in 1990. Bonita thus is deprived of her one-half share of the equity in the home until that time.”] But, with the advent of the guidelines, what may have been formerly an unarticulated premise, is now a required up front computation.
That being the case, the courts’ task in implementing the principle is going to be a challenging enterprise. In this case, we embark upon that challenge with rather vague directions to the fact finder but, nonetheless, a firm command that the calculation of in-kind income be fairly based on the noncustodial parent’s realistic ordinary living expenses.
Where I question the majority is in its suggested allocation of in-kind income to Linda for the value of the benefits the two children derive from their stepfather’s support that exceeds Gordon’s contributions. However, doing that denigrates the value of Linda’s contribution. I believe the value of the care, nurture and guidance provided by Linda to the two children should be a complete offset to the attribution of any in-kind income to her arising from the value of the benefit to these children from their stepfather’s support. NDAC § 75-02-04.1-09(l)(b) recognizes a custodial parent’s “substantial monetary and nonmonetary contribution to the child’s basic care and needs by virtue of being a custodial parent.” I disagree, therefore, that the fact finder should consider any benefit to the children as in-kind income to Linda. Instead, the fact finder should fairly compute Linda’s ordinary living expenses and consumable property based only upon her share.
In this case, Linda’s child support obligation will probably be offset against Gordon’s larger obligation. I anticipate with little joy the next case in which the remarried noncustodial parent, unemployed outside the home, with newly born child of second marriage, is deemed to have in-kind income of $1,000 and ordered to pay child support for two children of prior marriage in the amount of $300/month. But the noncustodial parent doesn’t have $300/ month. Must the spouse-stepparent pay? No, says section 14-09-09, NDCC. Yes, say the guidelines. Stay tuned!
I concur in most of the opinion but disagree that there be any attribution of in-kind income to Linda which supposedly arises from an alleged benefit to the parties’ two children. I also suggest that the Department of Human Services revisit the subject matter of in-kind income and consider whether or not that concept was intended to convert the noncustodial, but remarried, parent who is in the home caring for a young child of the remarriage, into a “voluntary” or “temporarily” unemployed child support obligor whose child support obligation accrues while that parent (in all likelihood, if custom prevails, the mother) remains in the home to care for the child. See Cook v. Cook, 364 N.W.2d 74 (N.D.1985); Burrell v. Burrell, 359 N.W.2d 381 *855(N.D.1985); Hoster v. Hoster, 216 N.W.2d 698 (N.D.1974).