Minar v. Minar

MARING, Justice,

concurring in part and dissenting in part.

[¶ 41] I concur in the majority opinion except as to Part II, which concludes N.D. Admin. Code § 75-02-04.1-07(9) is not applicable to Dean’s situation.

*527[lf 42] N.D. Admin. Code § 75-02-04.1-07(9) provides:

Notwithstanding subsections 4, 5, and 6, if an obligor makes a voluntary change in employment resulting in reduction of income, monthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed without a showing that the obligor is unemployed or underemployed.

Dean conceded he is unemployed. The trial court found “that [Dean’s] present employment status, is a result of his election to pursue his education so as to enhance his earning capacity.” The trial court also found Dean “would have the capacity for minimum wage employment in addition to his student responsibilities” and Dean “could secure continued employment as a drafter even though such continued employment may necessitate a relocation by [Dean].” The trial court concluded Dean was liable for child support based on the imputation of one hundred percent of his former income which is justified under § 75-02-04.1-07(9) of the North Dakota Administrative Code.

[¶ 43] The majority opinion concludes subsection 9 is not applicable to Dean’s situation because Dean concedes he is unemployed and subsection 3 of § 75-02-04.1-07, N.D. Admin. Code, “requires imputation of earnings of an obligor who is unemployed.”

[¶ 44] The majority fails to recognize that subsection 3 of § 75-02-04.1-07 requires imputation of earnings of an obligor “who is unemployed or underemployed” (Emphasis added.) Subsection 9 of § 75-02-04.1-07 permits imputation “without a showing that the obligor is unemployed or underemployed” when “an obligor makes a voluntary change in employment resulting in reduction of income.” The trial court did not need to make a finding whether Dean was unemployed or underemployed. It does not matter. The trial court only needed to determine whether Dean made “a voluntary change in employment,” which reduced his income. The history of § 75-02-04.1-07(9), N.D. Admin. Code, indicates the intent was to make it clear that the trial court has discretion to inquire into the reason for the change in employment status when applying the child support guidelines. Summary of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code ch. 75-02-04.1, Child Support Guidelines, p. 36 (June 14, 1999) (prepared by Blaine L. Nordwall).

[¶ 45] Although Dean initially was unemployed involuntarily due to his termination, the evidence in the record supports the trial court’s finding that Dean voluntarily chose to remain unemployed when he was employable and employment was available. When Dean made “his election” to go to college and remain unemployed, he made “a voluntary change in employment” under subsection 9 of § 75-02-04.1-07. To interpret subsection 9 of § 75-02-04.1-07, N.D. Admin. Code, to apply only to obligors who voluntarily become underemployed means an obligor who is involuntarily terminated from a job and then chooses to remain unemployed in order to go back to school will pay less support than the obligor who works albeit at a lower paying job. This provides a big incentive to all obligors, who in the future find themselves laid off to remain unemployed and to go to school. These obligors will have child support imputed at the most at ninety percent of their greatest average monthly earnings under subsection 3 of § 75-02-04.1-07, N.D. Admin. Code, whereas the obligor who voluntarily takes a lower paying job will have child *528support imputed at one hundred percent of their greatest average monthly earnings under subsection 9 of § 75-02-04.1-07, N.D. Admin. Code. In addition, these ob-ligors who are laid off and go to college may get their child support suspended while they are in school and may be able to avoid paying for health insurance for their children. See Henry v. Henry 1998 ND 141, 581 N.W.2d 921. By the time Dean is finished with his college degree in May 2002, Jaden will be four months from his 18th birthday and Janea will be three months from her 14th birthday. Janea is the only child that may share in any increased earning capacity Dean achieves.

[¶ 46] Our Court has said, “A parent has a duty to support her children to the best of her abilities, not simply to her inclinations. (Citations omitted.) The guidelines represent an effort to balance an obligor’s freedom to make employment decisions with the duty to diligently and fully support her children.” (Citations omitted.) Logan v. Bush, 2000 ND 203, ¶ 15, 621 N.W.2d 314. If the result of the change in employment status is a decrease in income, the obligor who made the choice should make a greater sacrifice than his children. Id. “Section 75-02-04.1-07(9), N.D. Admin. Code, embodies these principles.” Id.

[¶ 47] I am of the opinion N.D. Admin. Code § 75-02-04.1-07(9) is applicable to Dean’s situation and would remand in order for the trial court to determine the greatest average monthly earnings in any twelve consecutive months beginning on or after the thirty-six months before commencement of the proceedings before the court.

[¶ 48] HODNY, S.J., concurs.