Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Susan J. Solheim, Judicial Referee.
Melinda Hanson Weerts and Tasha M. Gahner, Fargo, ND, for plaintiff and appellee; submitted on brief.
Maureen Holman, Fargo, ND, for defendant and appellant; submitted on brief.
Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. McEvers, Justice, concurring in the result. Sandstrom, Justice, dissenting.
[¶1] Bradley Schiele appeals from the amended divorce judgment. We conclude the district court did not err in ordering Bradley Schiele to pay child support and did not err in failing to offset the child support obligation based on the benefits the child receives. We affirm the second amended judgment.
[¶2] The parties married in 1992 and divorced in 2012. Under the divorce judgment, the parties were awarded joint decision making for their two minor children, and Brenda Schiele was awarded primary residential responsibility. At the time the divorce judgment was entered, neither party had residential responsibility for their youngest child, C.B.S., as he was in the custody of the State and resided at the Jamestown State Hospital, and the divorce judgment did not provide a child support obligation for C.B.S. In spring 2013, C.B.S. was admitted into the Life Skills and Transition Center (" the Center" ) in Grafton; Cass County Social Services closed its case, effective April 10, 2013, and returned residential responsibility of C.B.S. to the parties, " per the terms of [their] divorce decree."
[¶3] Currently, C.B.S., the parties' only minor child, does not live with either party. He is severely autistic, lives at the Center, and nearly all his expenses, including food, clothing, and lodging, are paid by Medicaid and Supplemental Security Income (" SSI" ). In October 2013, Brenda Schiele moved to establish or modify child support for C.B.S. No written order was issued after the hearing on the motion, but the district court orally ruled Bradley Schiele had an obligation to pay child support,
effective October 2013. In January 2014, Bradley Schiele moved for relief from the judgment, or alternatively, to amend the judgment, requesting the parties' divorce judgment be amended to provide that neither party be awarded primary residential responsibility of C.B.S. because the child did not live with either party. The referee denied the motion because it was untimely and found Bradley Schiele had not alleged facts to support modifying residential responsibility. Bradley Schiele filed a request for review of the referee's decision, and the district court affirmed. The district court remanded the matter to the referee for a determination of child support, and a second amended divorce judgment was entered.
[¶4] On appeal, Bradley Schiele argues the district court erred in ruling he had an obligation to pay child support while C.B.S. was not living in either party's home and erred in determining he was not entitled to an offset of his child support obligation for benefits paid on behalf of C.B.S.
[¶5] " Child 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.
[¶6] Bradley Schiele argues the district court erred in ruling he had an obligation to pay child support when C.B.S. is not living in either party's home. Although the divorce judgment labeled Brenda Schiele as the parent with primary residential responsibility, Bradley Schiele argues the factual circumstances are not consistent with the definition of residential responsibility. Bradley Schiele argues neither party is providing a residence for C.B.S. because C.B.S. is residing at the Center, a residence maintained by the State and paid for by Medicaid; he also maintains that C.B.S.'s primary caregiver, as defined by N.D. Admin. Code § 75-02-04.1-01(9), is the Center, not Brenda Schiele. Because neither party has " true" residential responsibility for C.B.S. and neither party is the primary caregiver, Bradley Schiele maintains the district court should have concluded the child support obligation would commence when C.B.S. is primarily residing in Brenda Schiele's home. Bradley Schiele does not cite to any caselaw to support his position as he asserts there are no North Dakota cases which discuss the child support guidelines' applicability to a situation in which the child is in a residential placement, outside the home of either parent, and not at the expense or discretion of either parent.
[¶7] Parents have a mutual duty to support their children, and a " court may compel either or both of the parents to provide for the support of their children." N.D.C.C. § 14-09-08. Under N.D.C.C. § 14-09-09.7(1), the Department of Human Services is authorized to " establish child support guidelines to assist courts in determining the amount a parent should be expected to contribute toward the support of the child." The Department of Human Services has promulgated guidelines for child support in chapter 75-02-04.1 of the state's administrative code. Crandall v. Crandall, 2011 ND 136, ¶ 5, 799 N.W.2d 388. Administrative regulations are construed using rules of statutory construction. Id. at ¶ 6. " Statutory interpretation
is a question of law, fully reviewable on appeal." Id. (citation omitted).
[¶8] A " [d]etermination of a child support obligation is appropriate in any matter where the child and both of the child's parents do not reside together." N.D. Admin. Code § 75-02-04.1-02(9). " A support obligation should be established in each case where the obligor has any income." N.D. Admin. Code § 75-02-04.1-04. Except as provided in N.D. Admin. Code § 75-02-04.1-08.2 for equal residential responsibility situations, " calculations of child support obligations . . . consider and assume that one parent acts as a primary caregiver and the other parent contributes a payment of child support to the child's care." N.D. Admin. Code § 75-02-04.1-02(1). The general instructions for determining child support contemplate the primary caregiving parent is the obligee and is owed a duty of support. See N.D. Admin. Code § § 75-02-04.1-01(7) and (8) (defining obligee and obligor) and 75-02-04.1-02 (general instructions for determining support amount); see also N.D.C.C. ...