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Thompson v. Johnson

Supreme Court of North Dakota

April 17, 2019

Heather L. Thompson, Plaintiff and Appellant
v.
Christopher K. Johnson, Defendant and Appellee and State of North Dakota, Plaintiff and Appellee

          Appeal from the District Court of Traill County, East Central Judicial District, the Honorable Frank L. Racek, Judge.

          Pamela F. Coleman, Grand Forks, ND, for plaintiff and appellant.

          Patti J. Jensen, East Grand Forks, MN, for defendant and appellee.

          Janet K. Naumann (on brief), Special Assistant Attorney General, Fargo, ND, for plaintiff and appellee.

          OPINION

          JENSEN, JUSTICE.

         [¶1] Heather Thompson appeals from a district court judgment modifying Christopher Johnson's child support obligation and ordering her to repay overpayments of child support. We reverse and remand.

         I.

         [¶2] Thompson and Johnson have one child together. In November 2015, Thompson was awarded primary residential responsibility of the minor child and Johnson was ordered to pay $314 a month in child support. Thompson successfully moved the district court to vacate the judgment, and a new trial was held in May 2017. Following the new trial, the court noted that "Johnson had $4, 003, 495 in assets, overall equity of $1, 224, 533, and crops in storage of $691, 895." Because Johnson's significant assets were not consistent with the average losses reflected in his tax returns, the court determined Johnson's tax returns did not accurately reflect his income for child support purposes. Using Johnson's personal expenses and monthly budget to determine Johnson's in-kind income, the court found Johnson had a gross annual income of $171, 560.66 and a net annual income of $113, 916. In September 2017, the court entered an amended judgment requiring Johnson to pay child support in the amount of $1, 280 per month and $38, 989 in back child support. Johnson appealed.

         [¶3] On appeal, this Court concluded the district court "failed to impute Johnson's income or adequately explain how using his personal expenses and monthly budget satisfied the child support guidelines . . . [and] erred as a matter of law by failing to calculate Johnson's child support obligation according to the child support guidelines." Thompson v. Johnson, 2018 ND 142, ¶ 17, 912 N.W.2d 315. The matter was then remanded for a recalculation of child support.

         [¶4] In August 2018, the district court entered its amended findings which included a finding that Johnson's tax returns and profit and loss statements showed net losses and a determination that Johnson was underemployed. In determining whether Johnson was underemployed, the court did not consider its findings that Johnson had a gross annual income of $171, 560 and a net annual income of $113, 916, or its finding that Johnson has "sufficient cash flow to meet his monthly expenses of $8, 367." Based upon its determination that Johnson was underemployed, the court imputed Johnson's income pursuant to N.D. Admin. Code § 75-02-04.1-07, by considering the state's average earnings for someone with Johnson's qualifications and experience, and imputed wages at six-tenths of North Dakota's average earnings for farmers and ranchers-$49, 302. The corresponding child support obligation was $551 per month. The court also found Johnson had an increased ability to secure additional income from his assets for the purpose of supporting the minor child and ordered an upward deviation for daycare expenses in the amount of $270 per month pursuant to N.D. Admin. Code 75-02-04.1-09(2)(g), (h), & (i). An amended judgment was entered on August 23, 2018.

         [¶5] Johnson filed a motion seeking repayment of the excess child support he had paid to Thompson as a result of the lower child support obligation determined on remand and to eliminate the deviation for child care expenses. Thompson filed a motion to vacate the second amended judgment or for the court to reconsider its decision, asserting the court did not consider Johnson's in-kind income in determining whether Johnson was underemployed. A hearing on all motions was held October 18, 2018. The district court denied Thompson's motion to vacate the judgment and declined to reconsider its decision. Thompson filed an appeal before the court ruled on the potential overpayment of child support, and the court correctly refused to rule on the motion while an appeal was pending.

         [¶6] This Court remanded the case in November 2018 to resolve the pending motion on the potential overpayment of child support. On remand, the district court reduced the upward deviation and ordered Thompson to repay the excess child support she received. On appeal, Thompson argues the district court erred in finding Johnson to be underemployed by failing to consider Johnson's in-kind income, erred in modifying the upward deviation in child support, and erred in ordering Thompson to reimburse Johnson for excess child support.

         II.

         [¶7] The standard of review for child support decisions ...


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