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Wilson v. Wilson

Supreme Court of North Dakota

October 28, 2014

Brian Keith Wilson, Plaintiff and Appellee
v.
Cheryl Ann Wilson, Defendant and Appellant and State of North Dakota, Department of Human Services, Statutory Real Party In Interest and Appellee

Page 106

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Joel D. Medd, Judge.

Patti J. Jensen, East Grand Forks, Minn., for plaintiff and appellee.

Steven J. Simonson (argued) and Adele H. Page (appeared), Fargo, N.D., for defendant and appellant.

Robert A. Freed (on brief), Grand Forks, N.D., for statutory real party.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice.

OPINION

Page 107

Kapsner, Justice.

[¶1] Cheryl Wilson appeals from a district court judgment granting her a divorce from Brian Wilson, distributing the parties' marital estate, and ordering Brian Wilson pay child support. We conclude the district court did not err in distributing the parties' marital estate. However, we conclude the district court incorrectly calculated Brian Wilson's 2011 and 2012 child support obligation. We affirm in part, reverse in part, and remand.

I

[¶2] Cheryl and Brian Wilson were married in 1996, and have two minor children together. The parties separated in 2005. The parties' children lived with Cheryl Wilson during the separation and Brian Wilson voluntarily paid child support.

[¶3] Brian Wilson was in the Air Force during the parties' marriage. He was assigned to the United States' Embassy in Djibouti from May 2007 until May 2009, and London from June 2009 until October 2012, when he was discharged from the Air Force. Cheryl Wilson works two part-time jobs and goes to school.

[¶4] Brian Wilson filed for divorce in November 2012. After a trial, the district court entered an order awarding Cheryl Wilson primary residential responsibility of the children and distributing the parties' marital estate. The court reserved the issue of child support to allow the State, as a real party in interest, to have an opportunity to submit any argument and to provide the parties with an opportunity to respond.

[¶5] After the parties submitted child support calculations and briefs on the issue, the court entered an order setting Brian Wilson's child support obligation. The court found Brian Wilson was providing Cheryl Wilson with child support during the separation. The court found Cheryl Wilson applied for medical assistance in August 2011, the State attempted to serve Brian Wilson at that time but he would not accept service, and the court ordered the child support obligation would begin in August 2011. The court calculated Brian Wilson's income to determine his child support obligation and found he received base pay and large allowances for housing and living expenses while he was stationed overseas in 2011 and 2012. The court found the allowances included $4,184 per month for Overseas Housing Allowance (" OHA" ) and $1,328 per month in a Cost of Living Allowance (" COLA" ) in 2011. The court found the OHA and COLA payments included $325 for Basic Allowance for Subsistence (" BAS" ) and $1,310 for Basic Allowance for Housing (" BAH" ) in 2011. The court included Brian Wilson's base pay and BAS and BAH amounts to calculate his income, but found the OHA and COLA payments were not income for child support purposes. The court calculated Brian Wilson's child support obligation and ordered he pay $1,358 per month for August to December 2011, $1,415 per month for 2012, $761 per month for January to October 2013, and $704 per month after October 2013. The court entered a subsequent order giving Brian Wilson credit for the child support he voluntarily

Page 108

paid while the parties were ...


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