from the District Court of Ward County, North Central
Judicial District, the Honorable Gary H. Lee, Judge.
IN PART AND REVERSED IN PART.
Michael S. McIntee, for plaintiff and appellee.
S. Rau, for defendant and appellant.
1] Ethan Mattingley appeals a district court judgment
awarding Rebecca Schweitzer primary residential
responsibility of their minor child and ordering Mattingley
to pay child support. We affirm in part and reverse in part.
2] Mattingley and Schweitzer have one minor child, born in
2012. Schweitzer lives in Minot and Mattingley lives in
Velva, approximately 22 miles southeast of Minot. Mattingley
works in Minot and drives round trip from Velva to Minot
every day. After the child's birth he lived primarily
with Schweitzer, and Mattingley paid child support under an
earlier district court judgment.
3] In 2014 both parties sought primary residential
responsibility of the child. The district court, through
Judge Hagar, entered an interim order in February 2015
establishing parenting time and requiring Mattingley to pay
$970 per month in child support. Approximately one month
after entry of the interim order, Mattingley moved to modify
child support, alleging his work hours decreased and overtime
was not guaranteed. While the motion was pending, Mattingley
moved to recuse Judge Hagar, alleging Judge Hagar was biased
or prejudiced against Mattingley or his attorney. In June
2015, Judge Hagar entered an order decreasing
Mattingley's child support obligation from $970 to $891
per month effective March 1, 2015. In July 2015, Judge Hagar
denied Mattingley's motion to recuse, but subsequently
disqualified himself from the case on the same day.
4] Judge Louser was assigned to the case and presided over a
September 2015 trial. Before trial, Judge Louser informed the
parties she intended to "proceed anew on all issues
raised in the initial pleadings" including primary
residential responsibility and child support. After trial,
Judge Louser informed the parties of a personal conflict and
requested the case be assigned to another judge.
5] Presiding Judge Lee assigned himself to the case and after
familiarizing himself with the record and evidence submitted
at trial, awarded primary residential responsibility of the
child to Schweitzer and established parenting time for
Mattingley. The court found it was in the child's best
interests to live with Schweitzer in Minot where the child
will be attending school.
6] Judge Lee also addressed Mattingley's motion to recuse
and concluded it divested Judge Hagar of authority to proceed
in the case. The court vacated Judge Hagar's order
modifying child support and reinstated the $970 per month of
child support under the February 2015 interim order. Using
the evidence from trial, the court found Mattingley's
yearly income was $78, 600 and ordered him to pay $891 per
month in child support effective September 1, 2015, and $836
per month effective November 1, 2015.
7] After filing his notice of appeal, Mattingley moved to
modify child support because he lost his job in March 2016.
After a hearing the district court reduced Mattingley's
child support obligation to $440 per month effective April 1,
8] Mattingley argues the district court erroneously
calculated child support. He also argues the court erred in
vacating the June 2015 order modifying child support.
9] Child support decisions involve questions of law subject
to a de novo standard of review, findings of fact subject to
a clearly erroneous standard of review, and in some limited
areas may 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.
10] Mattingley argues Judge Lee erred in vacating Judge
Hagar's June 2015 order modifying his child support
obligation from $970 to $891 per month.
11] Mattingley filed a motion to recuse Judge Hagar before
entry of the June 2015 order modifying child support.
Mattingley alleged that on the basis of the rulings in the
case, Judge Hagar exhibited bias or prejudice against
Mattingley or his attorney. Mattingley also alleged Judge
Hagar may be biased against his attorney on the basis of his
attorney's earlier cases with Judge Hagar. Judge Hagar
denied Mattingley's motion to recuse, concluding his
allegations of bias ...