Heather L. Thompson, Plaintiff and Appellant
Christopher K. Johnson, Defendant and Appellee and State of North Dakota, Plaintiff and Appellee
from the District Court of Traill County, East Central
Judicial District, the Honorable Frank L. Racek, Judge.
F. Coleman, Grand Forks, ND, for plaintiff and appellant.
J. Jensen, East Grand Forks, MN, for defendant and appellee.
K. Naumann (on brief), Special Assistant Attorney General,
Fargo, ND, for plaintiff and appellee.
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.
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.
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.
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.
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.
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.
The standard of review for child support decisions ...