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State ex rel K.B. v. Bauer

April 2, 2009

STATE OF NORTH DAKOTA EX REL. K.B., MINOR CHILD, PLAINTIFF AND APPELLANT
v.
TRAVIS BAUER, 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: Crothers, Justice.

AFFIRMED AS MODIFIED.

[¶1] The State, through the Regional Child Support Enforcement Unit ("Unit"), appeals from a district court judgment establishing the child support obligation of Travis Bauer. We conclude the district court did not err when it failed to impute income to Bauer based upon the amount he earned from a college internship, but did err in deducting Bauer's visitation expenses directly from his child support obligation. We modify the judgment and, as modified, affirm.

I.

[¶2] Bauer is the father of a child, K.B., born out of wedlock in 2003. Through an agreement with K.B.'s mother, Bauer paid for one-half of K.B.'s medical insurance, medical expenses, and day care expenses, and exercised visitation with K.B. on alternating weekends. After K.B.'s mother applied for child support services with the Unit in 2006, the Unit brought this action to establish Bauer's child support obligation.

[¶3] At the time of the hearing in September 2007, Bauer was attending school full-time at North Dakota State University ("NDSU") majoring in mechanical engineering. As part of an internship program through the university, he had been employed at Ingersoll-Rand from May 2005 to August 2006 and from May 2007 to August 2007. He received a salary and college credit through the internship program. Between August 2006 and early 2007, Bauer also worked part-time as a sales associate at Sears.

[¶4] The district court calculated Bauer's child support obligation for the period from late 2006 to September 2007 based upon his actual income during that time. The parties do not dispute those amounts. The dispute in this case centers upon Bauer's ongoing future child support obligation from the date of the hearing.

[¶5] The Unit argued that Bauer was unemployed and that, under the child support guidelines, income must therefore be imputed to him based upon his greatest average gross earnings in twelve consecutive months during the previous three years, which the Unit argued was $41,989.50 earned during a twelve-month period of his first Ingersoll-Rand internship. The Unit contended that imputing this amount resulted in a child support obligation under the guidelines of $492 per month. Bauer argued that the income from Ingersoll-Rand had been earned through a temporary college internship and he could no longer earn that amount. He therefore argued income should be imputed based upon his earnings at Sears, resulting in a child support obligation of $314 per month.

[¶6] The district court agreed with Bauer and imputed income based upon Bauer's earnings at Sears, resulting in a child support obligation of $314 per month. The court further concluded Bauer was entitled to reduction of his child support for visitation expenses of $97.50 per month, resulting in a final child support obligation of $217 per month commencing February 29, 2008.

II.

[¶7] On appeal, the Unit contends the district court erred as a matter of law when it failed to impute income to Bauer based upon the $41,989.50 he earned during twelve months of his first Ingersoll-Rand internship.

[¶8] "Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review." Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. "If the district court fails to comply with the child support guidelines in determining an obligor's child support obligation, the court errs as a matter of law." Serr v. Serr, 2008 ND 229, ¶ 10, 758 N.W.2d 739 (quoting Serr v. Serr, 2008 ND 56, ¶ 18, 746 N.W.2d 416). The interpretation and proper application of a provision of the child support guidelines is a question of law, fully reviewable on appeal. Id. at ¶ 11. "The failure to properly apply the child support guidelines to the facts involves an error of law." Korynta v. Korynta, 2006 ND 17, ¶ 18, 708 N.W.2d 895 (quoting In re N.C.C., 2000 ND 129, ¶ 12, 612 N.W.2d 561). When a matter lies within the district court's discretion, "[a] court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law." Hagel v. Hagel, 2006 ND 181, ¶ 9, 721 N.W.2d 1.

[¶9] The Unit contends that, because Bauer was unemployed at the time of the hearing in September 2007, the district court was required to impute income to Bauer based upon his earning capacity under N.D. Admin. Code § 75-02-04.1-07(3), which, at the time this action was commenced, provided: Except as provided in subsections 4, 5, and 9, gross income based on earning capacity equal to the greatest of ...


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