Schiff v. Schiff ( 2000 )

VANDE WALLE,

Chief Justice, concurring and dissenting.

[¶ 52] I concur in the majority opinion with the exception of part III C. Because I do not agree the child support guidelines provide for income averaging in this instance, I dissent to that part of the opinion.

[¶ 53] I do not disagree that the longevity bonus is income when received. It obviously is. N.D. Admin. Code § 75-02-04.1-01(5)(a)(b). However, I do not believe it is income until received. Insofar as the guidelines rely on the federal income tax return, N.D. Admin. Code § 75-02-04.1-02(7), to document “gross income,” to require the inclusion of the bonus before it is actually earned is contrary to the guidelines.

[¶ 54] I am particularly concerned about the majority’s “income averaging” of the bonus. It is earned by working for three years but it is not earned proportionately each year under Gary’s employment contract. All three years must be completed. The guidelines use income averaging but it is apparently limited to income from self-employment. N.D. Admin. Code § 75-02-04.1-05(5). Even in that instance, it is limited to the “most recent” five years of business operations.

[¶ 55] I have no doubt Karen should share in the bonus when it is received. The trial court should make provisions that if the bonus is earned in 2001 the child support payments will increase accordingly for that year and then be reduced until the next bonus is earned. See, Helbling v. Helbling, 541 N.W.2d 443, 448-49 (N.D.1995) (VandeWalle, C.J., concurring) (observing better procedure is for trial court to automatically provide for a reduction in support when the effect of a “windfall” ceases).

[¶ 56] The majority’s provision for averaging the longevity bonus has merit, but I do not find support for the procedure in the guidelines. The majority states averaging fluctuating income is appropriate under the guidelines and quotes in part N.D. Admin. Code § 75-02-04.1-02(7). That section provides in total:

Income must be documented through the use of tax returns, current wage statements, and other information sufficiently to full apprise the court of all gross income. Where gross income is subject to fluctuation, particularly in instances involving self-employment, information reflecting and covering a period of time sufficient to reveal the likely extent of fluctuations must be provided.” (Emphasis added).

Gary is not self employed.

[¶ 57] I would direct the trial court to amend the judgment to provide that if in the year 2001 Gary receives the longevity bonus his child support obligation should increase accordingly for that year and reduce for the following year. See N.D. Admin. Code § 75-02-04.1-02(8) (stating “[i]f circumstances that materially affect the child support obligation are very likely to change in the near future, consideration may be given to the likely future circumstances.”).

[¶ 58] Gerald W. Vande Walle, C.J.