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Doepke v. Doepke

February 3, 2009

BRENDA J. DOEPKE, PLAINTIFF AND APPELLANT
v.
WESLEY L. DOEPKE, DEFENDANT AND APPELLEE



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

The opinion of the court was delivered by: Maring, Justice.

AFFIRMED.

[¶1] Brenda Doepke appeals from an amended judgment modifying Wesley Doepke's child support obligation. We affirm, concluding the district court's findings are not clearly erroneous and the court properly calculated Wesley Doepke's child support obligation.

I.

[¶2] Wesley and Brenda Doepke were married in 1995 and divorced in 2004. At the time of the divorce, the district court adopted the parties' stipulation and property settlement agreement. The parties agreed Brenda Doepke would have primary legal and physical custody of the parties' minor child. Wesley Doepke is a self-employed farmer, and the parties agreed he would pay $1,699 per month in child support based on a net income of greater than $10,000 per month.

[¶3] In June 2007, Wesley Doepke moved to modify custody, visitation, and his child support obligation. The custody motion was denied, and the parties agreed to modify visitation resolving all issues except Wesley Doepke's motion to modify his child support obligation. During an April 2008 hearing on the motion to modify child support, the court heard testimony about Wesley Doepke's income and evidence was presented, including Wesley Doepke's tax returns for 2003 through 2007, profit and loss statements for his farming business for 2003 through 2005, and FINPACK statements from March 2007 and 2008 prepared by Wesley Doepke's bank showing his assets and debts. Both parties submitted written closing arguments and proposed child support calculations. Brenda Doepke also requested the court award her attorney's fees.

[¶4] The district court granted Wesley Doepke's motion to modify his child support obligation finding:

Each party submitted proposed calculations. [Brenda Doepke's] calculations (Exhibit 7) include [Wesley Doepke's] 2005 income. However, [Wesley Doepke] is self-employed as a farmer and occasional truck driver, therefore the Court is to average his income from the most recent five years. N.D.A.C. § 75-02- 04.1-05. At the hearing [Wesley Doepke] provided his 2003 through 2007 tax returns. Based on that recent and complete information, the Court finds that the calculations found at Exhibit A of [Wesley Doepke's] Post Trial Brief are in accordance with the Child Support Guidelines and hereby ORDERS that [Wesley Doepke's] child support obligation is $846 per month.

The district court did not address Brenda Doepke's request for attorney's fees. An amended judgment was subsequently entered.

II.

[¶5] Brenda Doepke argues the district court erred in calculating Wesley Doepke's child support obligation. She contends Wesley Doepke's tax returns are not a reliable source to determine his income, and the court should have considered other evidence and imputed his income or used another method to determine his income and calculate his support obligation.

[¶6] In reviewing child support modifications, this Court has said, "[c]hild support determinations involve questions of law which are subject to a de novo standard of review, findings of fact which are subject to a clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to an abuse-of- discretion standard of review." Berge v. Berge, 2006 ND 46, ¶ 7, 710 N.W.2d 417. A court errs as a matter of law if it does not comply with the requirements of the child support guidelines. Torgerson v. Torgerson, 2003 ND 150, ¶ 6, 669 N.W.2d 98.

[¶7] Under the child support guidelines, a self-employed individual's child support obligation is generally calculated using an average of the individual's self-employment income from the most recent five years. N.D. Admin. Code § 75-02-04.1-05(4). The obligor's total income for internal revenue service purposes is used to calculate net income for the child support obligation. N.D. Admin. Code § 75-02-04.1-05(1). Although, tax returns generally are used to determine an obligor's total income, "[i]f the tax returns are not available or do not reasonably reflect the income from self-employment, profit and loss statements which more accurately reflect the current status must be used." N.D. Admin. Code § 75-02-04.1-05(3).

[¶8] The district court found Wesley Doepke is a self-employed farmer and concluded his income must be averaged under N.D. Admin. Code § 75- 02-04.1-05(4) to determine his support obligation. The court used Wesley Doepke's tax returns for 2003 through 2007 to average his income for the support calculations. Based on the information from Wesley Doepke's income tax returns, his total income was $153,287 in 2003, $112,150 in 2004, $102,160 in 2005, $39,557 in 2006, and $57,503 in 2007. The court found Wesley Doepke's average income for 2003 through 2007 was $92,932, and the court used this amount to determine his child support ...


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