Devine v. Hennessee

SANDSTROM, Justice,

dissenting.

[¶ 35] I respectfully dissent.

[¶ 36] Children are entitled to support from both their mothers and their fathers. Here a father with primary residential responsibility and with significant medical problems of his own seeks full support from the mother for the children as required under the guidelines.

[¶ 37] Under our child support guidelines, “[fincóme must be sufficiently documented through the use of tax returns, current wage statements, and other information to fully apprise the court of all gross income.” N.D. Admin. Code § 75-02-04.1-02(7) (emphasis added). The majority, at ¶ 19, citing N.D. Admin. Code § 75-02-04.1-02(7), determined that “[a]l-though there is sparse documentation concerning Hennessee’s income, we conclude Hennessee’s sworn affidavit and sworn testimony constitute adequate ‘other information’ to ‘fully apprise the court of all gross income.’ ”

[¶ 38] “Administrative regulations are derivatives of statutes and are construed under rules of statutory construction.” Gadeco, LLC v. Indus. Comm’n, 2013 ND 72, ¶ 10, 830 N.W.2d 535. “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears,....” N.D.C.C. § 1-02-02. “Words and phrases must be construed according to the context and the *689rules of grammar and the approved usage of the language.” N.D.C.C. § 1-02-03.

[¶ 39] The words of the child support guidelines clearly state, “Income must be sufficiently documented.... ” N.D. Admin. Code § 75-02-04.1-02(7). The verb “document” means “[t]o support with records, instruments, or other evidentiary authorities.” Black’s Law Dictionary 555 (9th ed.2009). “Documentation” derives from “document.” Random House Dictionary of the English Language 578 (2d ed.1987). Oral testimony is not documentation. See, e.g., In re Gorman, 2014 ND 88, ¶ 9, 845 N.W.2d 335 (“Based upon the totality of the testimony and documentation produced during hearing,.... ”); State v. Arot, 2013 ND 182, ¶ 2, 838 N.W.2d 409; Holte v. Holte, 2013 ND 174, ¶¶ 41-43, 48, 837 N.W.2d 894; Niles v. Eldridge, 2013 ND 52, ¶ 2, 828 N.W.2d 521; Reciprocal Discipline of Kitchen, 2013 ND 18, ¶ 2, 826 N.W.2d 620; Heinle v. Heinle, 2010 ND 5, ¶ 13, 777 N.W.2d 590 (“Travis Heinle testified he receives cash gifts from his father annually.... Travis Heinle did not submit any documentation of the income he received from his father to the district court.”). Hennessee provided absolutely no documentation to prove her income to the district court. This documentation is required under the clear language of section 75-02-04.1-02(7) of North Dakota’s child support guidelines.

[¶ 40] Section 75-02-04.1-07(10), N.D. Admin. Code, explains that if an individual fails to provide reliable information when seeking to amend or review a child support obligation, income will be imputed:

If the obligor fails, upon reasonable request made in any proceeding to review a child support obligation, to furnish reliable information concerning the obli-gor’s gross income from earnings, and if that information cannot be reasonably obtained from sources other than the obligor, income must be imputed based on the greatest of:
a. Subdivisions a through c of subsection 3; or
b. The obligor’s net income, at the time the child support order was entered or last modified, increased at the rate of ten percent per year.

[¶ 41] In Knoll v. Kuleck, 2004 ND 199, ¶ 8, 688 N.W.2d 370, we explained that an obligor has failed to furnish reliable information concerning his income when the obligor’s income is insufficiently documented:

We understand the trial court’s frustration in a case like this one in which neither of the parties attempted to present or cause to be presented evidence of the obligor’s income “sufficiently documented through the use of tax returns ... and other information to fully apprise the court of all gross income,” ... received by the obligor or “profit and loss statements which ... accurately reflect the current status,” ... of the obli-gor’s income. The parties’ inadequate evidentiary presentation, however, did not authorize the trial court to “take an arbitrary number that doesn’t directly connect to anything,” as the court did here, as the basis for its computation of an obligor’s child support obligation. On the facts before the trial court, N.D. Admin. Code § 75-02-04.1-07(8) requires income to be imputed to the obli-gor based on the greatest of four methods of measuring earning capacity for failure, upon reasonable request, to furnish reliable information concerning the obligor’s gross income from earnings, and it was error not to do so here.

[¶ 42] Although Kuleck was decided prior to the current version of North Dakota’s child support guidelines, the holding is nevertheless relevant because it explains that documentation is necessary in order *690to provide reliable information under the guidelines and that failure to provide this documentation requires that income be imputed. See id. Moreover, the current version of the guidelines has almost identical language to the version of the guidelines analyzed by the court in Kuleclc. See N.D. Admin. Code § 75-02-04.1-07(10) (“If the obligor fails, upon reasonable request made in any proceeding to review a child support obligation, to furnish reliable information concerning the obligor’s gross income from earnings.... ”).

[¶ 43] In this case, Hennessee moved to amend her child support obligations yet provided no documentation concerning her gross income from earnings. As a result, this case falls under N.D. Admin. Code § 75-02-04.1-07(10), which applies when an obligor is seeking review of a child support obligation but has failed to furnish reliable information concerning gross income. Hennessee’s income must therefore be imputed on the basis of the greater of (a) her income under subsection 3 of the guidelines, or (b) her net income at the time the child support order was last entered. See N.D. Admin. Code § 75-02-04.1-07(10).

[¶ 44] Section 75-02-04.1-07(3), N.D. Admin. Code, provides:

[G]ross 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.
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[¶ 45] The majority, at ¶ 24, recognized the district court “did not specifically make a finding whether Hennessee was underemployed or any findings concerning what the statewide earning average is for a person of similar work history and occupational qualifications.” Without a specific finding that Hennessee was unemployed or underemployed, her income cannot be properly calculated under the plain language of N.D. Admin. Code § 75-02-04.1-07(3). See also Surerus v. Matuska, 548 N.W.2d 384, 387-88 (N.D.1996) (“Ordinarily, a finding of either unemployment or underemployment is necessary to impute income under section 75-02-04.1-07.”). As a result, Hennessee’s income cannot be properly calculated under the first prong of N.D. Admin. Code § 75-02-04.1-07(10).

[¶ 46] Under the second prong, N.D. Admin. Code § 75-02-04.1-07(10)(b), Hen-nessee’s income is calculated on the basis of her “net income, at the time the child support order was entered or last modified, increased at the rate of ten percent per year.” N.D. Admin. Code § 75-02-04.1-07(10)(b). The record reflects that at the time the child support order was entered or last modified, Hennessee’s net monthly income was $4780.01. Under the income calculation provided by the guidelines, this amount is increased at the rate of ten percent per year.

[¶ 47] To summarize, N.D. Admin. Code § 75-02-04.1-07(10) provides that income in this situation must be imputed on the basis of the greatest of: (a) Subdivisions a through c of subsection 3; or (b) the obligor’s net income, at the time the child support order was entered or last modified, increased at the rate of ten percent per year. Because no calculation can be made under part (a), Hennessee’s income is greater under part (b) and must therefore be imputed on the basis of her previously calculated net income of $4780.01, increased at a rate of ten percent per year.

[¶ 48] The concurring opinion reasons that current tax statements would be irrelevant because the motion to modify child support was based on a new disability status, and current wage statements would not exist because Hennessee says she is *691not employed. Although wage and tax statements might not be helpful in this case, there are certainly other available documents, such as bank statements and disability pay stubs, which would provide evidence of Hennessee’s income.

[¶ 49] The concurring opinion also cites to Schumacher v. Schumacher, 1999 ND 10, ¶ 6, 589 N.W.2d 185, for the proposition that child support can be reduced solely on the basis of testimony. Although we held in Schumacher that documentation was not required, that case involved the calculation of a reduction in obligation based on payment of child medical expenses under a different section of the child support guidelines that does not specify documentation is required. Moreover, since Schu-macher was decided, this Court has clearly established the need for documentation. See, e.g., Harger v. Harger, 2002 ND 76, ¶ 10, 644 N.W.2d 182 (“As evidence of his 2000 income, he presented an unsigned, unfiled tax return prepared by a certified public accountant.... No other documentation was presented to support the figures listed on the return, and he was unable to explain their origin. This is clearly insufficient documentation of income.”) (citations omitted); Knoll v. Kuleck, 2004 ND 199, ¶ 7, 688 N.W.2d 370 (“At the hearing in 2004, neither of the attorneys presented tax returns, profit and loss statements, or any other documentation of Kuleck’s 2002 and 2003 income sufficient ‘to fully apprise the court’ of Kuleck’s gross income for those years.”).

[¶ 50] Finally, as recognized in the concurring opinion, Hennessee did have a document available which discussed her “proposed” disability rating and estimated her likely compensation. Nevertheless, that document was never offered into evidence, nor was it authenticated under the rules of evidence. See N.D.R.Ev. 901.

[¶ 51] I would therefore conclude the district court erred in computing Hennes-see’s income and child support obligation, and remand for findings which are consistent with the guidelines. If Hennessee wishes to obtain a downward modification of her child support obligation, she must provide documentary evidence of her alleged decrease in income. See Shipley v. Shipley, 509 N.W.2d 49, 53 (N.D.1993) (“Accurate information about [obligor’s] pension was necessary to correctly determine his gross income and net income. Under these circumstances, the trial court should have required the parties to supply that information to determine the exact amount of the clinic’s contribution to [his] pension....”).

[¶ 52] DALE V. SANDSTROM