Torgerson v. Torgerson

Summary

The Supreme Court of North Dakota affirmed an amended judgment reducing Timothy Torgerson's child support obligation after one child reached adulthood and the existing support amount no longer conformed to the guidelines. The court upheld use of the self-employed farmer's five-year average tax-return income, declined to impute income based on an experienced farm manager's salary, and approved the treatment of depreciation under the applicable guidelines. The court also awarded $500 in attorney fees against Laurie's attorney under N.D.R.App.P. 38 because the appeal was frivolous.

Holdings

1. When modification is sought more than one year after entry of the original child-support order, the moving party need not demonstrate a material change in circumstances; the party need only show that the existing support amount does not conform to the child-support guidelines.
2. A court may impute income to a self-employed obligor only when sufficient competent evidence establishes that the obligor's income is significantly less than prevailing income earned in the community by similarly situated persons; evidence concerning an experienced farm manager was insufficient because Laurie did not establish that Timothy possessed the relevant qualifications or experience.
3. Under the revised 1999 child-support guidelines, depreciation is not required to be added back into an obligor's income when determining net income from self-employment; the guidelines use total income for Internal Revenue Service purposes.
4. The district court did not clearly err in finding that Timothy's tax returns reasonably reflected his self-employment income where the disputed deduction was an inadvertent, minimal error and the record did not show that correcting it would have increased the child-support obligation.
5. Under North Dakota Rule of Appellate Procedure 38, the court may award reasonable attorney fees when an appeal is frivolous; the court awarded Timothy $500 in partial attorney fees payable by Laurie's attorney.

Questions Presented

1. Whether Timothy was required to show a material change in circumstances to modify the child-support order more than one year after its entry.
2. Whether the district court properly declined to impute income to Timothy based on alleged underemployment.
3. Whether the child-support guidelines permitted the district court to use tax-return income without adding depreciation back into Timothy's income.
4. Whether the district court properly treated Timothy's tax returns as a reasonable reflection of his self-employment income despite depreciation claimed for a vehicle owned by his son.
5. Whether the appeal was frivolous and warranted an award of attorney fees under North Dakota Rule of Appellate Procedure 38.

Disposition

affirmed