Tibor v. Tibor , 2001 N.D. LEXIS 51 ( 2001 )

NEUMANN, Justice,

concurring and dissenting.

[¶ 33] I agree with almost all of the majority opinion, with the exception of paragraphs 29 and 30 which allow a trial court to make a dollar-for-dollar deduction from the child support obligation rather than from the obligor’s income in allowing for visitation expenses.

[¶ 34] I agree with the majority that N.D. Admin. Code § 75-02-04.1-09(2)® does not provide clear guidance for calculating a downward departure from the child support guidelines based on visitation travel expenses. However, I fear the majority’s holding permitting a dollar-for-dollar setoff against an obligor’s child support obligation, rather than an adjustment to the obligor’s income, is an erroneous reading of the child support regulations, and one that will return to bedevil us in future cases.

[¶ 35] Subdivision (i) refers to “[t]he reduced ability of the obligor to provide support.” Throughout the child support regulations, an obligor’s ability to pay child support depends upon the obligor’s income, with a few inapplicable exceptions. I believe the reference to “[t]he reduced ability of the obligor to provide support” in subdivision (i) is a reference to a reduction in the obligor’s income available from which to pay child support, and does not authorize a direct dollar-for-dollar decrease in the child support obligation itself. The legislative assembly has not provided, nor has this Court allowed, a dollar-for-dollar departure — upward or downward— for travel expenses, and I fail to see why we should start here. Rather, I believe travel expenses should be treated like medical expenses of the children. Under N.D. Admin. Code § 75-02-04.1-01(7)(e), the medical expenses of the children are deducted from the obligor’s net income, rather than directly from the monthly child support obligation.

[¶ 36] Moreover, the majority opinion invites extension. If the language in subdivision (i) does permit a dollar-for-dollar decrease in the child support obligation, as the majority maintains, then the identical language in subdivisions (b), (g), and (h) referring to an “increased ability of an obligor ... to provide child support” authorizes a dollar-for-dollar increase in the child support obligation based on the increased value of the obligor’s assets; the obligor’s asset transactions; or a monthly income in excess of ten thousand dollars per month. Because of the dangerous path the majority opinion paves, I respectfully dissent.

[¶ 37] In my opinion, we should instruct the trial court to calculate the downward deviation from the child support guidelines by deducting the court-ordered travel expenses from Tibor’s income, rather than directly from the child support obligations.

[¶ 38] MARY MUEHLEN MARING, J., concurs.